N. K. v. Tex. Dep't of Family & Protective Servs.

• Decision Date: 12 July 2022
• Docket Number: 03-22-00028-CV
• Parties: N. K., Appellant v. Texas Department of Family and Protective Services, Appellee
• Court: Texas Court of Appeals

N. K., Appellant
v.
Texas Department of Family and Protective Services, Appellee

No. 03-22-00028-CV

Court of Appeals of Texas, Third District, Austin

July 12, 2022

FROM THE 453RD DISTRICT COURT OF HAYS COUNTY NO. 20-1373, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Kelly and Smith

MEMORANDUM OPINION

Edward Smith, Justice

Appellant N.K. (Father) challenges a district court's order terminating his rights to two children, "Brandy" and "Andrea,"^[1] respectively aged six and four at the time of trial. The trial court also terminated Mother's parental rights, but she did not appeal. Father first argues that the evidence presented to the trial court is legally and factually insufficient to support the sole predicate ground for termination-that he had "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." See Tex. Fam. Code § 161.001(b)(1)(E). Second, he argues that the evidence is legally and factually insufficient to support the district court's finding that termination is in the best interest of the children. See id. § 161.001(b)(2). We affirm.

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BACKGROUND^[2]

The Department opened the investigation that led to this termination in June of 2020 upon receiving reports that Mother and Mother's live-in boyfriend were using illegal substances, possibly in the presence of the children. Father was in the custody of the Texas Department of Criminal Justice at the time on charges of aggravated assault with a deadly weapon. According to the affidavit supporting the petition for services, investigator Arlene Castro visited Brandy and Andrea at home with their maternal grandmother and great-grandmother, who reported that Mother had been gone for three days. Mother's boyfriend arrived at the home during the visit but refused an interview, and the grandmother and great-grandmother "interfered with" Castro's attempts to interview the children.

According to the affidavit, Castro visited again the next day to find Mother and "a friend," with the two of them reporting that they had returned from spending several days traveling together. Mother and the friend apparently offered various aliases for the friend, but the Department ultimately identified him as Brandon, an individual with "an extensive criminal history spanning multiple counties," "includ[ing] multiple narcotic charges, engaging in organized criminal activity and assault charges." Mother and Brandon both admitted to recent marijuana use. Brandon refused testing; Mother agreed to testing of urine samples but not hair samples. Mother's samples returned "negative but dilute."

The Department's research revealed Mother's and Father's history with the Department. The Department received reports regarding Mother in 2016 and 2019, with both reports involving allegations of drug use, one involving neglectful supervision, and one including possible domestic violence. The Department received reports regarding Father in 2010, 2016, and 2019. In 2010,

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the Department investigated reports that Father, at thirteen years old, had sexually assaulted a three-year-old family member. After finding "reason to believe" the allegations, the Department turned the matter over to law enforcement. The 2016 investigation included reports that Father would allow Mother to engage in substance abuse in front of the children. The 2019 report resulted in "reason to believe" the children were suffering neglectful supervision.

The Department's research also revealed criminal history on the part of both Mother and Father. Mother had been arrested on two non-violent offenses. One (resisting arrest) was never prosecuted; the other (credit card fraud-elderly) was still pending at the time of trial. Father has a more extensive criminal history, with multiple charges for violent offenses, including the aggravated assault with a deadly weapon charge for which he was incarcerated during the pendency of this case.

TRIAL^[3]

The parties tried the case to the bench over two days in September and December of 2021,^[4] remotely in accordance with the emergency orders in place at the time. See Thirty-Sixth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 897, 897 (Tex. 2021) (order); Thirty-Seventh Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 186, 186 (Tex. 2021) (order);

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Thirty-Eighth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 900, 900 (Tex. 2021) (order); Thirty-Ninth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 213, 213 (Tex. 2021) (order).

Deputy Matthew Vasquez of the Victoria County Sheriff's Office testified first. He explained that he is assigned to the "Gulf Coast Violent Offender and Fugitive Task Force," which "go[es] after wanted fugitives" and "includes drug interdiction." He testified that on August 31, 2020, he and his partner had been assigned "to search for . . . a black Kia Sorento" with a specified license plate. Vasquez had received information that Brandon was selling narcotics out of that vehicle and was advertising as much on social media. Vasquez testified that, upon approaching the vehicle, the two deputies "detected a strong order . . . of marijuana emitting [sic] from the vehicle," and that "multiple officers" were called and responded to the scene. He further testified that a search recovered 14.2 ounces of marijuana and an unspecified number of hydrocodone tablets. Vasquez testified that the occupants of the vehicle were Brandon and Mother, both of whom "were charged for manufacture/delivery of a controlled substance in penalty group 3 or 4, less than 28 grams, as well as possession of marijuana, greater than 4 ounces but less or equal to 5 pounds." When asked if Brandon and Mother were the only occupants of the vehicle, he answered in the negative, explaining that "there was also a small female child," which he ultimately identified as "the daughter to [Mother]." Vasquez estimated that the child was a "toddler" and "approximately two years of age."^[5] Finally, Vasquez testified that he was "not familiar" with Father, who was not present at the scene.

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Sergeant Jason Boyd of the criminal-interdiction unit of the Victoria County Sherrff's Office offered testimony similar to Deputy Vasquez's. He testified that on July 22, 2021, the county's narcotics investigators had "directed [his] attention to a vehicle that [Mother had] occupied" because "one of [the] investigators detected the smell of marijuana emanating from the vehicle." Boyd explained that he responded and approached the vehicle and "actually observed marijuana in plain view," ultimately finding two bags of an unspecified amount of the substance. He testified that Brandon and Mother were in the vehicle, that backup officers responded, but that he (i.e., Boyd) remained at the scene "the entire time." The Department then tendered, and the court admitted, eight photos that Boyd confirmed accurately reflected the scene as he found it, including the presence of marijuana, a scale, an unspecified sum of currency, and a child in a car seat. Boyd testified that in his experience, the scene was not safe for a child. In addition to exposure to the possession and trafficking of drugs, and the potential exposure to other crimes often associated with drug use, he said, "[T]here was also the-the time of night, the lack of food . . . no diapers, no childcare products except for that one bottle [referring to photo] that was on the backseat." When asked about Father, Boyd testified that he was "not familiar with the name."

Department investigator Arlene Castro testified next, largely to the effect of the affidavits she had filed in support of the Department's petitions. Although there is no evidence that Father was ever notified of this information, Castro recalled a report that Mother and her live-in boyfriend "were giving each other shots in the arm" and described her initial visits to Mother's home in June of 2020. Castro recalled that Mother claimed she "didn't really know" Brandon, describing him as "just like, some dude she knew through, like a third party." Castro, however, testified that Brandon appeared "very comfortable at that residence" and that Brandon

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was listed as "boyfriend" at intake. Upon conducting background checks, Castro found that Mother "had a pending theft charge out of Hays County" and that Brandon had "substantial criminal history with regards to drug[-]related charges out of both Hays County and Victoria County."

Castro then summarized Mother's compliance with the service plan. She testified that on September fourth, Mother and Andrea both tested positive for marijuana via hair-follicle testing. At that point Castro concluded that the children were in a "dangerous" situation, that they were not old enough to protect themselves, and that removal and the naming of the Department as temporary managing conservator was in the best interest of the children. She recalled that the Department placed her on a service program but did not seek a court-ordered family service plan at that time. She testified that, although Mother had completed her services, she "didn't learn from her services," testing positive for marijuana around three months later.

With respect to Father, Castro testified that she had not been able to meet with him because of his incarceration and "because of COVID." She said she had spoken to him once on the phone but did not describe that conversation other than to say that she had "advised him of the report." She agreed with the statement that Father "was not involved in the occurrences that brought this case to light."

Paternal Grandmother took the stand next and described herself as "an active grandmother in [Andrea's and Brandy's] lives since they were born. She testified:

I had several concerns with the

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