ACCEPTED
01-14-00826-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/30/2014 11:11:32 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00826-CV
FILED IN
1st COURT OF APPEALS
In the Court of Appeals HOUSTON, TEXAS
12/30/2014 11:11:32 PM
for the First Judicial District CHRISTOPHER A. PRINE
Clerk
Houston, Texas
_______________________________________________________________
IN THE INTEREST OF J. M. A MINOR CHILD
_______________________________________________________________
On Appeal from Cause No. CCL7443 in the
County Court at Law of Washington County, Texas
_______________________________________________________________
BRIEF OF APPELLEE
_______________________________________________________________
TREVOR A. WOODRUFF MARK T. ZUNIGA
TDFPS Interim General Counsel Appellate Attorney
Office of General Counsel
State Bar No. 24013804
2401 Ridgepoint, Bldg. H-2
MC: Y-956
Austin, Texas 78754
Tel.: (512) 929-6617
JOHNNIE BETH PAGE Fax: (512) 339-5876
TDFPS Director of Program Litigation mark.zuniga@dfps.state.tx.us
ATTORNEYS FOR APPELLEE, THE TEXAS
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
IDENTITY OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 38.2(a)(1)(A), the
Department adopts the Identity of Parties and Counsel set out in KIMBERLY’S
BRIEF.
i
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ...........................................................................i
TABLE OF CONTENTS ................................................................................................. ii
INDEX OF AUTHORITIES..............................................................................................iv
STATEMENT OF THE CASE ....................................................................................... viii
ISSUES PRESENTED .....................................................................................................ix
RESPONSE TO KIMBERLY’S ISSUE TWO: The evidence established that
Kimberly has a five year history of methamphetamine abuse. After drug
treatment in this case, she failed to complete aftercare and relapsed. She did not
complete a second drug treatment program until 47 days prior to trial. She did
not participate in individual therapy to address domestic violence, and in the
last few months of the case saw the man who put a gun to her head more often
than the child. She failed to maintain stable housing before and throughout the
pendency of the case. The Department’s plan is to have the maternal
grandmother adopt. Is the evidence legally sufficient to support the finding that
termination of Kimberly’s parental rights was in the child’s best interest under
Family Code subsection 161.001(2)? ..................................................................ix
RESPONSE TO KIMBERLY’S ISSUE ONE: After a removal hearing before which
the Department did not have custody of the child, the trial court, without the
benefit of an affidavit of indigence, appointed an attorney once Kimberly
appeared in opposition to the suit. Did the trial court err in not appointing an
attorney for Kimberly until 7 months prior to trial? ............................................ix
STATEMENT OF FACTS................................................................................................. 2
SUMMARY OF THE ARGUMENT .................................................................................. 21
STANDARD OF REVIEW .............................................................................................. 23
A. Clear and Convincing Burden of Proof ........................................................ 23
B. Standard in Conducting Legal and Factual Sufficiency Review .................. 24
C. Trier of Fact Has the Authority to Resolve Credibility Issues and Conflicts
in the Evidence .............................................................................................. 25
ARGUMENT ............................................................................................................... 26
ii
RESPONSE TO KIMBERLY’S ISSUE TWO: The evidence established that
Kimberly has a five year history of methamphetamine abuse. After drug
treatment in this case, she failed to complete aftercare and relapsed. She did not
complete a second drug treatment program until 47 days prior to trial. She did
not participate in individual therapy to address domestic violence, and in the
last few months of the case saw the man who put a gun to her head more often
than the child. She failed to maintain stable housing before and throughout the
pendency of the case. The Department’s plan is to have the maternal
grandmother adopt. Is the evidence legally sufficient to support the finding that
termination of Kimberly’s parental rights was in the child’s best interest under
Family Code subsection 161.001(2)? ................................................................. 26
A. The Holley Factors ........................................................................................ 27
B. Evidence Relevant to Best Interest Determination ....................................... 29
C. Conclusion..................................................................................................... 49
RESPONSE TO KIMBERLY’S ISSUE ONE: After a removal hearing before which
the Department did not have custody of the child, the trial court, without the
benefit of an affidavit of indigence, appointed an attorney once Kimberly
appeared in opposition to the suit. Did the trial court err in not appointing an
attorney for Kimberly until 7 months prior to trial? ........................................... 49
A. Kimberly Appointed Counsel at Appropriate Time ..................................... 50
B. TEX. FAM. CODE § 262.201 ........................................................................... 52
C. TEX. FAM. CODE § 262.205 ........................................................................... 54
PRAYER ...................................................................................................................... 56
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT .............................. 57
CERTIFICATE OF SERVICE ........................................................................................... 58
iii
INDEX OF AUTHORITIES
Cases: Page
In re A.B.,
No. 04-13-00246-CV, 2013 Tex. App. LEXIS 10841 (Tex. App.–San Antonio,
August 28, 2013, no pet.) (mem. op.) ...........................................................34, 38
In re A.M,
385 S.W.3d 74 (Tex. App. – Waco 2012, pet denied)........................................ 32
In re B.G.,
317 S.W.3d 250 (Tex. 2010) .............................................................................. 50
In re B.R.,
950 S.W.2d 113 (Tex. App.—El Paso 1997, no writ) ........................................ 25
In re B.S.W.,
No. 14-04-00496-CV, 2004 Tex. App. LEXIS 11695, 2004 WL 2964015 (Tex.
App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.) ...........37, 44, 48
In re C.A.J.,
122 S.W.3d 888 (Tex. App.–Fort Worth 2003, no pet.) .........................38, 44, 48
In re C.C.,
No. 13-07-00541-CV, 2009 Tex. App. LEXIS 2239 (Tex. App.—Corpus
Christi Apr. 2, 2009, pet. denied) (mem. op.)..................................................... 28
In re C.H.,
89 S.W.3d 17 (Tex. 2002).................................................................23, 25, 27, 28
In re C.N.C.,
No. 13-12-00164, 2012 Tex. App. LEXIS 7431 (Tex. App.—Corpus Christi
Aug. 27, 2012, no pet.) (mem. op.)..................................................................... 39
In re D.M.,
58 S.W.3d 801 (Tex. App.—Fort Worth 2001, no pet.) ..................................... 28
D.O. v. Tex. Dep’t. of Human Servs.,
851 S.W.2d 351 (Tex. App.—Austin 1993, no writ) .......................33, 39, 41, 44
In re D.S.,
333 S.W.3d 379 (Tex. App.—Amarillo 2011, no pet.) ................................33, 38
iv
Davis v. Travis County Child Welfare Unit,
564 S.W.2d 415 (Tex. Civ. App.—Austin 1978, no writ) ................................. 32
Dupree v. Tex. Dep’t. of Protective & Regulatory Servs.,
907 S.W.2d 81 (Tex. App.—Dallas 1995, no writ) ................................27, 31, 36
In re E.A.,
No. 13-06-503-CV, 2007 Tex. App. LEXIS 7159 (Tex. App.—Corpus Christi
Aug. 31, 2007, no pet.) (mem. op.)...................................................32, 33, 37, 38
In re E.C.R.,
402 S.W.3d 239 (Tex. 2013) .............................................................................. 33
In re E.S.M.,
550 S.W.2d 749 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.). 25
In re F.A.R.,
No. 11-04-00014-CV, 2005 Tex. App. LEXIS 234 (Tex. App.—Eastland Jan.
13, 2005, no pet.) (mem. op.) .......................................................................32, 36
In re G.M.,
596 S.W.2d 846 (Tex. 1980) .............................................................................. 23
In re G.S.,
No 14-14-00477-CV, 2014 Tex. App. LEXIS 10563 (Tex. App.–Houston [14th
Dist.], September 23, 2014, no pet.) (mem. op.) ................................................ 31
Holley v. Adams,
544 S.W.2d 367 (Tex. 1976) .............................................................................. 27
In re J.D.,
436 S.W.3d 105 (Tex. App.—Houston [14th Dist.] 2014, no pet.) .............29, 31
In re J.F.C.,
96 S.W.3d 256 (Tex. 2002)...........................................................................24, 26
In re J.N.H.,
No. 02-11-00075-CV, 2011 WL 5607614, 2011 Tex. App. LEXIS 9199 (Tex.
App.—Fort Worth, Nov. 17, 2011, no pet.) (mem. op.) ..................................... 31
In re J.O.C.,
47 S.W.3d 108 (Tex. App.—Waco 2001, no pet.) ............................................. 27
In re K.C.,
219 S.W.3d 924 (Tex. App.—Dallas 2007, no pet.) .......................................... 31
v
In re K.L.L.H.,
No. 06-09-00067-CV, 2010 Tex. App. LEXIS 154, 2010 WL 87043 (Tex.
App.—Texarkana Jan. 12, 2010, pet. denied) (mem. op.)............................50, 52
In re K.M.L.,
443 S.W.3d 101 (Tex. 2014) .............................................................................. 50
In re L.M.I.,
119 S.W.3d 707 (Tex. 2003) ............................................................................. 26
In re M.R.,
243 S.W.3d 807 (Tex. App.—Fort Worth 2007, no pet.).............................31, 38
Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402 (Tex. 1998), cert. denied, 525 U.S. 1017 (1998) ..................... 25
May v. May,
829 S.W.2d 373 (Tex. App.—Corpus Christi 1992, writ denied) ...............33, 38,
In re O.N.H.,
401 S.W.3d 681 (Tex. App.—San Antonio 2013, no pet.) ..........................34, 38
In re R.D.S.,
902 S.W.2d 714 (Tex. App.—Amarillo 1995, no writ) ..................................... 25
Ray v. Burns,
832 S.W.2d 431 (Tex. App.—Waco 1992, no writ).....................................33, 38
In re S.H.A.,
728 S.W.2d 73 (Tex. App.—1987 writ ref’d n.r.e.) ........................................... 28
In re S.P.M.,
No. 07-13-00282-CV, 2014 Tex. App. LEXIS 614 (Tex. App.—Amarillo Jan.
21, 2014, no pet.) (mem. op.) .......................................................................41, 44
In re T.D.C.,
91 S.W.3d 865 (Tex. App.—Fort Worth 2002, pet. denied) .............................. 44
Toliver v. Tex. Dep’t of Family and Protective Servs.,
217 S.W.3d 85 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..................32, 37
Transp. Ins. Co. v. Moriel,
879 S.W.2d 10 (Tex. 1994)................................................................................. 23
vi
In re V.A.,
No. 13-06-237-CV, 2007 Tex. App. LEXIS 805 (Tex. App.—Corpus Christi
Feb. 1, 2007, no pet.) (mem. op) ..................................................................33, 38
In re V.L.B.,
445 S.W.3d 802, No. 01-14-00201-CV, 2014 Tex. App. LEXIS 10043 (Tex.
App.–Houston [1st Dist.] September 4, 2014, no pet.) (op. on reh’g) ..........51, 52
In re W.E.C.,
110 S.W.3d 231 (Tex. App.—Fort Worth 2003, no pet.).............................39, 41
Wilson v. State,
116 S.W.3d 923 (Tex. App.—Dallas 2003, no pet.) ....................................39, 41
Wischer v. Tex. Dep’t of Family and Protective Servs.,
No. 03-12-00165-CV, 2012 Tex. App. LEXIS 7523 (Tex. App.—Austin Aug.
29, 2012, no pet.) (mem. op.) ............................................................................. 39
In re Z.S.,
___S.W.3d ___, No. 05-13-01614-CV, 2014 Tex. App. LEXIS 2958 (Tex.
App.–Dallas, March 17, 2014, no pet.)............................................................... 28
Statutes:
TEX. FAM. CODE § 101.007 (Lexis 2014) .................................................................23
TEX. FAM. CODE § 107.013 (Lexis 2014) ...........................................................50, 52
TEX. FAM. CODE § 161.001 (Lexis 2014) ......................................................... passim
TEX. FAM. CODE § 262.102 (Lexis 2014) ................................................................. 56
TEX. FAM. CODE § 262.201 (Lexis 2014) ........................................ 52, 53, 54 , 55, 56
TEX. FAM. CODE § 262.205 (Lexis 2014) .....................................................54, 55, 56
Rules:
TEX. R. APP. P. 9.8...................................................................................................... 1
vii
STATEMENT OF THE CASE
Nature of the Case: Involuntary termination of parental rights under
chapter 161 of the Texas Family Code.
Trial Court: The Honorable Matthew Reue, Judge Presiding
in the County Court at Law of Washington
County, Texas.
Disposition in the Trial Court: After a jury trial, the trial court found by clear
and convincing evidence that termination of the
parent-child relationship of Kimberly to the child
is in the child’s best interest and that Kimberly
engaged in acts or conduct that satisfied one or
more of the statutory grounds for termination.
The Department was appointed permanent
managing conservator of the child.
Parties in the Court of Appeals: Kimberly, Appellant.
Texas Department of Family and Protective
Services, Appellee.
viii
ISSUES PRESENTED
RESPONSE TO KIMBERLY’S ISSUE TWO: The evidence established that
Kimberly has a five year history of methamphetamine abuse. After drug
treatment in this case, she failed to complete aftercare and relapsed. She did not
complete a second drug treatment program until 47 days prior to trial. She did
not participate in individual therapy to address domestic violence, and in the
last few months of the case saw the man who put a gun to her head more often
than the child. She failed to maintain stable housing before and throughout the
pendency of the case. The Department’s plan is to have the maternal
grandmother adopt. Is the evidence legally sufficient to support the finding that
termination of Kimberly’s parental rights was in the child’s best interest under
Family Code subsection 161.001(2)?
RESPONSE TO KIMBERLY’S ISSUE ONE: After a removal hearing before which
the Department did not have custody of the child, the trial court, without the
benefit of an affidavit of indigence, appointed an attorney once Kimberly
appeared in opposition to the suit. Did the trial court err in not appointing an
attorney for Kimberly until 7 months prior to trial?
ix
No. 01-14-00826-CV
In the Court of Appeals
for the First Judicial District
Houston, Texas
_____________________________________________________________
IN THE INTEREST OF J.M., A CHILD
_____________________________________________________________
On Appeal from Cause No. CCL-7433 in the
County Court at Law of Washington County, Texas
_____________________________________________________________
BRIEF OF APPELLEE
_____________________________________________________________
To the Honorable Justices of the Court of Appeals:
This case involves the termination of parental rights of “Kimberly” to the
child “Jennifer.”1 CR 1:186-196, 2:2; APPENDIX 1, 2. After a jury verdict, the
Honorable Judge Matthew Reue signed an Order of Termination on October 2,
2014. CR 1:186-196; APPENDIX 1. The Honorable Judge Matthew Reue also
signed a Judgment Nunc Pro Tunc on November 6, 2014. CR 2:2; RR 13:4;
APPENDIX 2. These orders, collectively, terminated Kimberly’s parental rights to
Jennifer under Family Code subsections 161.001(1)(D), (E), (O) and (P) and found
1
The Department shall use pseudonyms to refer to family members. See TEX. R. APP. P. 9.8. It
will refer to the appellant mother as “Kimberly”, the father as “David”, and the child as “Jen-
nifer”. The maternal grandmother shall be referred to as “Theresa” and her husband as “Bob”.
that termination is in the child’s best interest.2 CR 1:186-196, 2:2; APPENDIX 1, 2;
TEX. FAM. CODE § 161.001 (Lexis 2014); APPENDIX 3. The order also appointed
the Texas Department of Family and Protective Services (the “Department”) as the
child’s permanent managing conservator. CR 1:189; APPENDIX 1.
In two issues, Kimberly challenges the legal sufficiency of the jury’s finding
that termination was in the best interest of the child, and complains about the pro-
cess in which she was appointed counsel. Specifically, she complains about the
failure of the trial court to admonish her about the right to a court-appointed attor-
ney at the initial hearing and the alleged failure to timely appoint that attorney.
KIMBERLY’S BRIEF iv.
After a review of the record, Kimberly’s issues should be denied.
STATEMENT OF FACTS
Background information
David, age 31, and Kimberly, age 25, are the parents of Jennifer, who was
19 months old at the time of trial. CR 1:2; RR 8:1, 148, 161-62.
Kimberly’s drug use and lack of stability prior to removal
Kimberly admitted that she began crushing her prescribed Adderall pills and
snorting them when she was 15, just before being sent to a boarding school. RR
8:150. She tried cocaine at about the same time. RR 8:190.
2
In the same order, the trial court also terminated David’s parental rights. CR 1:186-196. David
does not appeal this judgment.
2
Kimberly testified that she decided to leave the home of her mother, There-
sa, when she was 17. RR 8:151-52. Kimberly claimed she would not call it run-
ning away because, she claimed, her mother knew where she was. RR 8:151-52.
Theresa, on the other hand, indicated her daughter did run away and testified that
she was not always able to find Kimberly or maintain contact. RR 9:121.
Kimberly testified that she then moved in with a friend, “L.M.”, who used to
run a bible study. RR 8:152. She moved out “[n]ot long” after moving in because
their boyfriends did not get along. RR 8:152. Kimberly claimed she does not re-
member where she lived after that. RR 8:152.
At some point she reached an agreement with Theresa to move back home.
RR 8:153. She testified that she thought her parents were too controlling, so she
moved out again. RR 9:153.
She then moved in with her boyfriend, “N.N.”, in Brenham for a few
months. RR 8:154. She left him when “he was getting on [her] nerves” and
moved in with her friend, “E.B.”, in Brenham. RR 8:155.
Kimberly testified that she stayed with E.B. for almost six months before she
moved in with her boyfriend, “C.L.”, first in Brenham for four months before mov-
ing to College Station. RR 8:155. They were in College State for two or three
months before they moved back to Brenham. RR 8:156.
3
Kimberly testified that, after her breakup with C.L., her parents helped her
with a house and a car “and that is when I started doing cocaine.” RR 8:156. As
Theresa described it, she was helping Kimberly with the rent because Kimberly
“had gotten on cocaine and way, pretty much, near death. She was emaciated,
sick, desperate for help, wanted help, didn’t want the drugs anymore.” RR 9:122.
Kimberly admitted that she stayed in that home for three months. RR 8:156.
Kimberly explained that her parents had offered to pay for the first three months,
and “when the fourth month came, I had spent my money, as well as my room-
mate’s money on drugs and, therefore, my roommate decided I should leave.” RR
9:11.
Kimberly then testified that she moved in with “K.T.” and stayed there al-
most a year. RR 8:157. Kimberly then testified that she moved in with her friend
“T.B.” RR 8:157. Kimberly claimed she wasn’t doing cocaine at this time. She
testified she stayed there almost six months. RR 8:158.
She testified that this was the point that she met David, the father of her
child. RR 8:158. Kimberly testified that she started doing drugs again at about
this point. RR 8:158-59.
Theresa testified that she lost contact again with her daughter once Kimberly
started dating David. RR 9:126.
4
Kimberly admitted she started using methamphetamines when she was 20.
RR 8:164. As she explained:
It was just a[n] every-once-in-awhile thing. A little bit before me and
[David] got together I dabbled in it, then when we got together he had
also dabbled in it; so therefore, we dabbled in it together.
RR 8:165.
Kimberly testified that she was living in Kingswood with her cousin and his
wife when she got pregnant. RR 8:159. Kimberly claimed she was sober during
her pregnancy. RR 8:165. She had only been in Kingswood a month when she
came back to Brenham for the weekend and David was arrested for a warrant. RR
8:160. As a result of the arrest, “I wound up staying in Brenham,” explained Kim-
berly. RR 8:160. She was living with David’s mother at that time for about three
months “until I just couldn’t deal with her anymore.” RR 8:160.
Kimberly testified that she then moved in with her girlfriend “Natalie” for
two months before completing the last three months of her pregnancy at Theresa’s
home. RR 8:160.
When Jennifer was six weeks old, Kimberly and Jennifer started moving
around. RR 8:162. Kimberly vacillated between Theresa’s home and David’s res-
idence, at the home of his uncle. RR 8:163. As Kimberly explained, “Having a
baby and trying to live out of a suitcase is not fun.” RR 8:163.
5
Kimberly admitted that she began using illegal drugs again when her daugh-
ter was five months old. RR 8:195.
Kimberly testified she was staying at an unnamed friend’s house with David
when the Department initially contacted her. RR 8:161.
Reasons for the Department’s Involvement in this Case
Kimberly admitted that Department got involved in her life “[b]ecause of the
life-style I was living. I was using drugs.” RR 8:148.
Aleda Jarvis, a special investigator with the Department, testified that she
became involved in this case on August 9, 2013 because of a referral for the ne-
glectful supervision and physical neglect of Jennifer. RR 8:111-12. Jennifer was
six months old at the time. RR RR 8:114. The report alleged that Jennifer’s half-
sibling, a seven-year old, was taking care of Jennifer and may have witnessed drug
use in the home. RR 1:112-13. Ms. Jarvis testified that she interviewed the seven-
year old, who said she saw her father, David, “smoking a brown cigarette”. RR
8:113. Officer Eddie Ocanas of the Brenham police department testified that in his
opinion brown cigarettes could be “marijuana Swishers”, where a cigar is sliced
open, the tobacco is removed, marijuana is inserted and then it is wrapped up
again. RR 8:132, 140-41. Ms. Jarvis also indicated that the seven-year old said
she saw her father use a light and a spoon and a shot. RR 8:113. Kimberly denied
6
that David used drugs intravenously because, although heavily tattooed, he was
afraid of needles. RR 8:14.
Ms. Jarvis testified that David denied her entry into his residence. RR
8:114. Ms. Jarvis indicated that David initially denied drug use, but refused to take
a drug test and eventually admitted to smoking marijuana. RR 8:114. David told
Ms. Jarvis that Kimberly did not live there. RR 8:114. However, this is contrary
to Kimberly’s testimony. RR 8:161.
Ms. Jarvis eventually interviewed Kimberly. RR 8:114. Ms. Jarvis said that
Kimberly never gave her a permanent address, but at one point Kimberly indicated
she was living in a motel. RR 8:119. Ms. Jarvis testified that Kimberly initially
denied drug use. RR 8:115. Ms. Jarvis indicated that when Kimberly submitted to
a drug test, she tested positive for methamphetamines and amphetamines. RR
8:115. Ms. Jarvis testified that Kimberly also admitted at that time to taking
Xanax not prescribed to her. RR 8:115.
Kimberly testified that she was “hysterical” when she learned she had failed
the drug test. RR 8:166. Kimberly admitted that she had tried to clean out her sys-
tem with pills and mouthwash. RR 8:166-67. As Kimberly explained, “But not
only that I had failed the drug test, but I had just messed up so big to lose the best
thing that ever happened to me.” RR 8:167.
7
On August 21, 2013, based on the drug test results, Ms. Jarvis asked Kim-
berly to place Jennifer out of the home. RR 8:115. Ms. Jarvis indicated that Kim-
berly responded to this request by asking that she leave her parents’ home and that
Kimberly allow Jennifer to stay with Theresa and her husband Bob. RR 8:116.
Ms. Jarvis testified that at a meeting between the family and the Department,
Theresa and Bob indicated that it would be preferable for the Department to file for
temporary custody in order to monitor the parents’ progress. RR 8:118. At this
same meeting David had agreed to take a drug test, but never followed through
with it. RR 8:116, 122.
The conclusion of Ms. Jarvis’ investigation was that Jennifer had been ne-
glected due to neglectful supervision as the result of the parents’ drug use. RR
8:118.
Ms. Jarvis indicated that prior to the adversary hearing, Kimberly told her
that there was a history of domestic violence between her and David, and she had
left him. RR 8:120.
Ms. Jarvis testified that the Department was appointed the temporary manag-
ing conservator of Jennifer on September 26, 2013. RR 8:118.
The Department created a service plan for Kimberly
Kimberly admitted that the Department developed a service plan for her. RR
8:170.
8
Samantha Gonzales was the Department’s conservatorship case worker and
had been since shortly after September 26, 2013. RR 9:59-61. Ms. Gonzales testi-
fied that Kimberly’s service plan included
1. completing individual counseling (which was to address parenting and
domestic violence issues);
2. a criminal-free lifestyle;
3. having visits with her child;
4. maintaining bimonthly contact with the Department;
5. maintaining stable and legitimate income;
6. completing a psychological evaluation;
7. submitting to random drug screens;
8. completing drug rehabilitation with recommendations (including ad-
dressing domestic violence while there); and
9. completing an after-care program.
RR 9:62.
Kimberly Failed to Complete her Service Plan
At trial and on appeal, Kimberly conceded that she did not complete her ser-
vice plan. RR 9:24; KIMBERLY’S BRIEF, page 19.
Ms. Gonzales testified that Kimberly had a “chronic problem” keeping Ms.
Gonzales informed about her living arrangements. RR 9:65. Ms. Gonzales said
9
that without knowing Kimberly’s address or even the city in which she resided,
Ms. Gonzales could not set up services. RR 9:79.
Kimberly admitted that she received a referral for a psychological evaluation
November 2013. RR 9:17-18. Kimberly claimed that she was unable to follow
through on that referral because the first drug rehabilitation facility limited her
phone use. RR 9:18.
Ms. Gonzales testified that she had wanted to reestablish services for Kim-
berly at the time of Kimberly’s visit with her child in January, but the visit ended at
5 pm and the drug testing service had to stay open late for a second test, which was
required because Kimberly felt like the swab test was inaccurate. RR 9:69.
Ms. Gonzales testified that Kimberly did not call back to reestablish her ser-
vices. RR 9:69-70. Ms. Gonzales indicated that she “lost contact” with Kimberly
“until February.” RR 9:69.
Ms. Gonzales testified that she texted Kimberly February 5, 2014, to ask for
her address, but she did not receive a response until February 10, 2014. RR 70-71.
Kimberly admitted that she falsely told Ms. Gonzales that she was living at an ad-
dress that was actually the address for David’s sister. RR 8:177. Ms. Gonzales in-
dicated that this incorrect address prevented her from communicating to Kimberly
regarding an important development in the case. RR 9:72
10
Ms. Gonzales testified that at the permanency conference on February 19,
2014, the Department’s primary plan went from reunification to relative adoption.
RR 9:73-74.
Ms. Gonzales defended the reasons behind the Department’s altering the
primary plan:
We took into account the lack of progress made by both parents up
until that point. At that point, they had approximately, like I said, five
months to show some progress made. We didn’t feel it was signifi-
cant enough progress to continue with the primary goal of that.
Doesn’t mean we aren’t still working towards reunification. We
simply felt it was more appropriate as a concurrent goal. Also, we
took into the account that neither parent showed up for the permanen-
cy conference as a sign of, I don't know, a lack of interest.
RR 9:73
As Ms. Gonzales continued to explain:
[W]e . . . felt that perhaps switching the goal could get the attention
from the parents and light a fire to realize the seriousness of the situa-
tion and kind of get some momentum going with their progress, at that
point.
RR 9:73.
Ms. Gonzales testified that Kimberly contacted her again when Kimberly
had a visit on April 11, 2014. RR 9:78. Ms. Gonzales indicated Kimberly would
not provide her a permanent address even though Ms. Gonzales had requested it.
RR 9:78.
11
Ms. Gonzales testified that after April 11, the next time she heard from
Kimberly again was in court on May 6, 2014. RR 9:79-80. Ms. Gonzales indicat-
ed that she asked Kimberly for her address and Kimberly responded by telling her
she was living with a friend and did not know the address. RR 9:80. Ms. Gonzales
testified that she asked Kimberly to text the address to her, which Kimberly never
did. RR 9:80.
Kimberly claimed she wasn’t able to set up her services because she was
supposed to go back into drug inpatient treatment for her second stint. RR 9:18-
19.
After completion of the second inpatient drug treatment (a mere 47 days pri-
or to trial), Kimberly claimed that she asked to have her services set up, but
couldn’t explain why it didn’t happen. RR 8:1, 184-85; 9:23-24.
Kimberly admitted she never tried to set up the services on her own. RR
9:36-37.
Kimberly admitted that during the pendency of the case, she worked only
once – during her first attempt at drug treatment. RR 8:194.
Kimberly continued to use drugs
Kimberly initially entered drug rehabilitation on October 17, 2013. RR
8:168. Ms. Gonzales testified that Kimberly tested positive for methampheta-
12
mines, amphetamines, marijuana and Benzodiazepines when she entered the pro-
gram. RR 9:107.
Kimberly complained about what she felt were the bait-and-switch tactics of
the inpatient program.
I actually got hoaxed into going on terms of 30 days. Once I got there
they told me it wasn’t 30 days, it was 60 days, and I needed to stay for
60 days. It’s whatever the counselor thought. If you needed more
time, you’d have to stay.
RR 8:168. Kimberly admitted that she did not go into drug rehabilitation the first
time with the right attitude. RR 8:171. Kimberly conceded that she did not take
rehab seriously at that point, and she did not want to change. RR 9:16. As she ex-
plained, “I felt like I was forced. I didn’t want to go. I thought that I could do this
and then still continue to use the drugs, just not get caught on the drug test.” RR
8:170. Additionally, Kimberly testified, “I didn’t go in with a clear wanting, hit-
rock-bottom wanting this for myself, as well as for my daughter.” RR 8:170.
Kimberly explained, “I was just ready to get out. I was counting the days until I
got out.” RR 9:17.
Kimberly testified that the rehabilitation center discharged her on December
16, 2013. RR 8:171. The rehabilitation center upon discharge recommended a 90-
day intensive outpatient program which could have been completed in Beaumont
but would have been difficult completing in Brenham. RR 8:171. Ms. Gonzales
13
explained that Kimberly was assigned a sponsor and was supposed to participate in
a 12-step program. RR 9:64.
Kimberly admitted she relapsed on New Year’s Eve. RR 8:173-74.
Kimberly admitted that she tested positive for methamphetamines, amphet-
amines and marijuana on January 22, 2014, when she was trying to set up a visit
with Jennifer. RR 8:175, 9:68. Ms. Gonzales testified that when the swab test
came back dirty, Kimberly assured her “there’s no way she should have been posi-
tive.” RR 9:68. However, the urinalysis confirmed the original result from the
swab. RR 9:68.
Ms. Gonzales testified that in the middle of March, 2014, there was an alle-
gation that Kimberly was living with a friend in the Brenham Housing Authority
subdivision and that the two of them were using methamphetamines and children
were in the home. RR 9:75. Ms. Gonzales testified that she found Kimberly in
that residence, and told her that if Kimberly continued to get these allegations re-
garding drug use in the home, there was a risk that those children could be re-
moved as well. RR 9:75-76.
Ms. Gonzales described the following as Kimberly’s reaction to this conver-
sation:
She told me that she was sick and tired of being in that life-style, that
she didn’t want to be with [David] any more, that she was going to go
to rehab, and that she was going to go as soon as possible, and that she
was ready to -- ready to, you know, go back to rehab and get clean.
14
RR 9:76.
In March 2014, Kimberly testified that she discussed her drug use with Of-
ficer Ocanas. RR 8:180. Officer Ocanas testified that she admitted to him that she
was using methamphetamine, and mentioned going to rehab. RR 8:139, 180.
Kimberly admitted that she tested positive for methamphetamines and am-
phetamines and admitted to marijuana use in April. RR 8:182.
Kimberly admitted that on June 5, 2014, 95 days prior to trial, she tested
positive for methamphetamines, amphetamines and marijuana. RR 8:1, 183.
Kimberly testified that she enrolled in a second drug rehab program June 25,
2014, 75 days prior to trial. RR 8:1, 184. She claimed to have been clean for “a
little over two and a half months” by the time of trial. RR 8:195. The following is
from the Department’s examination of Kimberly:
Q. Okay. This case started in August of 2013, that was when you
first were told you needed to go to rehab, and now it’s finally sinking
in in June of 2014. Is that what you’re telling this jury?
A. Yeah, better late than never.
RR 8:184.
The second rehab was 28 days in length, meaning that it concluded 47 days
prior to trial. RR 8:1, 184-85.
Initially, on the first day of trial, when asked if Austin Recovery Center, the
location of the second drug inpatient program, suggested any type of follow-up
15
care, Kimberly responded, “Not that I’m aware of.” RR 8:185. When asked about
going to a sober home in Austin, Kimberly replied, “It wasn’t a have-to thing.”
RR 8:186. Ms. Gonzales, on the other hand, testified that Kimberly’s case manag-
er had said that Kimberly was going to need aftercare. RR 9:83.
Kimberly testified that she had had a sponsor in Austin, but had not yet
gained one since she had moved back to Brenham. RR 9:42.
Kimberly admitted to filling a prescription for 16 pills of hydrocodone after
completion of the second stint in drug rehabilitation. RR 9:48.
Kimberly’s unstable housing during the Department’s involvement
Kimberly indicated that the day after the completion of the first drug rehabil-
itation program she moved in with her grandmother in Beaumont, but attempted to
get subsidized housing in Brenham. RR 8:171. Before the Brenham housing ap-
plication came through, Kimberly decided to move in with David at a hotel in
Hempstead until the end of February. RR 8:173, 177.
Ms. Gonzales testified that in the middle of March, 2014, there was an alle-
gation that Kimberly was living with a friend in the Brenham Housing Authority
subdivision. RR 9:75.
Kimberly testified that she and David had moved to a new hotel by March
2014. RR 8:178.
16
Kimberly claimed that she moved in with a friend named “J.M.” (no rela-
tion) because she wanted to get away from David. RR 8:180. That lasted for
about a month. RR 8:182.
Thereafter, Kimberly and David stayed at a house with “a friend” before
moving into yet another hotel in Waller. RR 8:182-83.
After David was arrested in May 2014, Kimberly testified that she lived in
“Bluebonnet Hills” with a friend she called “Clayton”. RR 7:183, 8:136.
Kimberly testified that she was residing at the time of trial with her uncle in
Hempstead, explaining “I decided I wanted to stay around my family and try to
work on relationships with them.” RR 8:185-86.
Kimberly’s lack of contact with Jennifer
Theresa described Kimberly’s contact with Jennifer from August 2013 to
June 2014 with one word, “Inconsistent.” RR 9:150.
When Kimberly initially placed Jennifer voluntarily with Theresa, Kimberly
testified she went to see Jennifer daily, and “would walk back and forth to visits
with not even a thought.” RR 9:14. At the time of the first rehab, Kimberly was
making scheduled visits with Jennifer. RR 9:19. Kimberly contacted Ms. Gonza-
les to set up a visit with her child January 22, 2014. RR 9:66. Thereafter, Ms.
Gonzales “lost contact” with Kimberly. RR 9:69. At the point where relapse be-
cause a concern, visits went from being supervised by placement to being super-
17
vised by the Department. RR 9:110. The record indicates that Kimberly then con-
tacted Ms. Gonzales for a visit on April 11, 2014. RR 9:78. Ms. Gonzales didn’t
hear from her again until a court date on May 6, 2014. RR 9:79-80.
Kimberly was supposed to see Jennifer right before admitting herself to re-
hab the second time, but Kimberly explained that she had been up late packing and
had slept through her alarm, and she claimed she did not want to be late to Austin
Recovery Center. RR 8:184-85. Ms. Gonzales explained that all visits – including
this scheduled 30 minute visit – are cancelled if the parent is 15 minutes late, as
was the case here. RR 9:83.
From May until the beginning of trial on September 8, 2014, Kimberly saw
Jennifer a total of six times. RR 8:189.
Kimberly’s association with drug culture, including David
In that same period of time, from May 6 to September 8, Kimberly saw Da-
vid while he was incarcerated a total of seven times – May 11, May 18, May 26,
June 15, August 8, August 10 and September 5 (a mere three days before trial).
RR 8:1, 189. Kimberly admitted she “was there to be supportive of him.” RR
8:189. At least once, she used Joshua Bryant, whom Officer Ocanas had identified
as a drug dealer, as her ride to the jail. RR 8:136, 188
Kimberly admitted that David came to see her every weekend she was at the
first drug rehabilitation program. RR 8:169.
18
Kimberly testified that she moved in with David at a Hotel in Hempstead on
New Year’s Eve when she relapsed. RR 8:173-74.
Officer Ocanas testified that it was his understanding that Kimberly was in
the car January 29, 2014, the night he handled a “controlled purchase” of drugs as
part of his investigation against David. RR 8:140.
Kimberly testified at that one point in February she was living with David at
a hotel. RR 8:177. Kimberly testified that they moved to a new hotel by March
2014, and David was selling drugs to pay for the room. RR 8:178.
Officer Ocanas testified that Theresa and Bob contacted him March 16,
2014, alerting him that they were worried because Kimberly told them David had
assaulted her. RR 8:137. Kimberly admitted that she told her parents David had
put a gun to her head in the hotel, although she later claimed it had not occurred on
that particular date. RR 8:138, 178-79. Kimberly admitted to Ocanas that she was
using methamphetamine, and mentioned going to rehab. RR 8:139, 180.
The next time Officer Ocanas ran into Kimberly, he was serving a warrant
against David in May 2014 at the residence of David’s mother. RR 8:136. At the
time Officer Ocanas was affecting the arrest, Kimberly got in a vehicle with Joshua
Bryant, a drug dealer against whom Officer Ocanas had made drug cases. RR
8:136-37.
19
Kimberly’s Plans
On the first day of trial, Kimberly testified that her “permanent plan” was to
live with her uncle in Hempstead. RR 8:196. She indicated that she had just got-
ten a job at Brookshire Brothers in Hempstead, and was going to start when the tri-
al concluded. RR 8:196, 9:26. Kimberly indicated that she was going to stay there
and work on “trying to get my feet underneath me from the road I just got off of.”
RR 8:196.
On the second day of trial, Kimberly testified that her aunt in Houston of-
fered with a four-bedroom home for Kimberly and Jennifer. RR 9:52. When
asked about the logistics of working in Hempstead and living in Houston, she later
back off of this, indicating that “this is not a for sure thing.” RR 9:55.
Kimberly admitted that she had “not yet” looked into daycares for Jennifer,
and did not know how much they would cost. RR 9:53, 56.
Department’s Plans
Ms. Jarvis indicated that Kimberly placed Jennifer with Theresa and Bob
August 21, 2013. RR 8:115-16. Ms. Gonzales testified that the Department’s pri-
mary plan was relative adoption. RR 9:73. Theresa and Bob have worked out a
division of labor between the two of them, and have adjusted to life with a baby.
RR 9:133, 166. They already set up day care. RR 9:133.
20
Ms. Melissa Brod, the Department’s supervisor in this case, indicated that
the state of Texas is not a good long-term parent for children. RR 9:183. She ex-
plained that a child in the first three years of life needs stability to trust and bond
with the people caring for them. RR 9:188.
Bob, Theresa’s husband, indicated that the two of them would adopt if Kim-
berly’s parental rights were terminated. RR 9:168-69. Theresa explained that the
following would happen if the jury were to allow for adoption:
We’re going to continue to do what we’ve been doing. We’re going
to keep her in a Christian day care, and then, subsequently, you know,
make decisions about elementary schools and so forth. We’re going
to give her a good, strong, firm foundation. A constant home that she
can depend on every day and we are just going to love her.
RR 9:133. Theresa testified that she and her husband had been living in the same
home for sixteen years. RR 9:138, 148.
Theresa and Bob told the jury that she intended to keep Kimberly involved
in Jennifer’s life as long as Kimberly was sober. RR 9:140-41, 170.
SUMMARY OF THE ARGUMENT
In Kimberly’s second issue, she contends that the evidence is legally insuffi-
cient to support the jury’s finding that termination is in the best interest of the
child. Kimberly began using drugs ten years ago, and began abusing methamphet-
amines, her apparent drug of choice, five years ago. She admitted that she did not
take her first stint in drug rehabilitation seriously, she relapsed, she did not com-
21
plete her second attempt at drug rehabilitation until 47 days prior to trial, and never
completed her required aftercare for either attempt at drug rehabilitation. There
was also domestic violence between herself and David prior to the filing of this
case, and he put a gun to her head during the pendency of the case. Kimberly nev-
er began counseling to address the domestic violence issues, and from May until
the time of trial in September, Kimberly saw David in jail more often than she saw
Jennifer. Additionally, Kimberly has a life-long issue with stable housing and em-
ployment. The jury was empowered by this evidence to see Kimberly’s lack of
motivation to correct the issues that caused Jennifer to be brought into care and
conclude with a firm conviction that past will be prologue, and Jennifer is better
off with the stability of her grandmother.
In her first issue, Kimberly complains that the trial court should have warned
her at the initial hearing about her right to an attorney, and should have appointed
an attorney prior to the February hearing. However, the duty to warn only exists
for removal hearings prior to which the Department already had custody of the
child. Because the Department did not have custody until after that hearing, and
Kimberly supported the Department having custody, there was no duty to warn.
Because the trial court appointed Kimberly an attorney once she appeared in oppo-
sition to the Department, nearly seven months prior to trial, the trial court did not
err in the timing of the appointment.
22
All of Kimberly’s issues should be overruled and the trial court’s order of
termination should be affirmed.
STANDARD OF REVIEW
A. Clear and Convincing Burden of Proof
To terminate parental rights, the Department must prove by clear and con-
vincing evidence that: (i) a parent committed one of the acts or omissions set out
in Family Code section 161.001(1); and (ii) the termination of parental rights is in
the child’s best interest. TEX. FAM. CODE § 161.001 (Lexis 2014); In re G.M., 596
S.W.2d 846, 847 (Tex. 1980). Clear and convincing evidence is described as “that
measure or degree of proof which 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.”
TEX. FAM. CODE § 101.007 (Lexis 2014); Transp. Ins. Co. v. Moriel, 879 S.W.2d
10, 31 (Tex. 1994). Although parental rights are of constitutional dimension, the
Supreme Court has explained that an appellate courts review must not be so rigor-
ous that the only fact findings that could withstand review are those established
beyond a reasonable doubt and held that it is essential that courts recognize that pa-
rental rights are not absolute and that the emotional and physical interests of chil-
dren should not be sacrificed to preserve that right. In re C.H., 89 S.W.3d 17, 26
(Tex. 2002).
23
B. Standard of Conducting Legal and Factual Sufficiency Review
In reviewing the evidence for legal sufficiency in a parental termination
case, the court must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The court must review all
the evidence in the light most favorable to the finding and judgment; meaning that
the court assumes that the factfinder resolved all disputed evidence in favor of the
finding if a reasonable factfinder could do so, and disregards all evidence a
reasonable factfinder could have disbelieved. Id. However, the court considers
undisputed evidence, even if it is contrary to the finding. Id.
Kimberly does not challenge the factual sufficiency finding that termination
is in the best interest of Jennifer. See KIMBERLY’S BRIEF, page vii (“Appellant at-
tacks the legal sufficiency of the evidence”) (emphasis added). Nevertheless, in
reviewing the evidence for factual sufficiency, in determining whether the evi-
dence is such that a factfinder could have reasonably formed a firm belief or con-
viction that its finding was true, the court considers whether disputed evidence is
such that a factfinder could not have reasonably formed a firm belief or conviction
in the truth of its finding. Id. The evidence is factually insufficient if, in light of
the entire record, the disputed evidence that a factfinder could not have reasonably
24
credited in favor of the finding is so significant that the factfinder could not have
reasonably formed a firm belief or conviction in the truth of its finding. Id.
C. Trier of Fact Has the Authority to Resolve Credibility Issues and
Conflicts in the Evidence
The clear-and-convincing evidence standard does not mean that the evidence
must negate all reasonable doubt or that the evidence must be uncontroverted. In
re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). As a re-
viewing court conducts a factual-sufficiency review, it must maintain the respec-
tive constitutional roles that exist between the factfinder and the reviewing court.
C.H., 89 S.W.3d at 27. The appellate court cannot substitute its own judgment for
that of the factfinder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407
(Tex. 1998), cert. denied, 525 U.S. 1017 (1998). The factfinder has the sole au-
thority to weigh the evidence, draw reasonable inferences therefrom, and choose
between conflicting inferences. R.D.S., 902 S.W.2d at 716. The factfinder also en-
joys the right to resolve credibility issues and conflicts within the evidence and
may freely choose to believe all, part, or none of the testimony espoused by any
particular witness. Id. (citing to In re E.S.M., 550 S.W.2d 749, 757 (Tex. Civ.
App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.)) (judge was entitled to disbelieve
the testimony of the biological parent). Where conflicting evidence is present, the
factfinder’s determination on such matters is generally regarded as conclusive. In
re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no writ).
25
The Texas Supreme Court expounded on the importance of giving deference
to the trier of fact in accessing the credibility of witnesses and cautioned against
the reweighing of the evidence, when it wrote:
A brief response to the dissenting justices’ depiction of the record
in this case is warranted. Both dissents effectively second-guess
the trial court’s resolution of a factual dispute by relying on evi-
dence that is either disputed, or that the court could easily have re-
jected as not credible. Even under the standard we articulated in In
re J.F.C., this reweighing of the evidence is improper. J.F.C., 96
S.W.3d at 266. And in a case like this, where so much turns on the
witnesses’ credibility and state of mind, appellate factfinding is
particularly dangerous.
In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
ARGUMENT
I. RESPONSE TO KIMBERLY’S ISSUE TWO: The evidence established that
Kimberly has a five year history of methamphetamine abuse. After drug
treatment in this case, she failed to complete aftercare and relapsed. She did
not complete a second drug treatment program until 47 days prior to trial.
She did not participate in individual therapy to address domestic violence,
and in the last few months of the case saw the man who put a gun to her
head more often than the child. She failed to maintain stable housing before
and throughout the pendency of the case. The Department’s plan is to have
the maternal grandmother adopt. Is the evidence legally sufficient to support
the finding that termination of Kimberly’s parental rights was in the child’s
best interest under Family Code subsection 161.001(2)?
Kimberly concedes that the evidence is legally sufficient to support termina-
tion under TEX. FAM. CODE § 161.001(1)(D), (N), (O) and (P). KIMBERLY’S BRIEF
19. She does not contest factual sufficiency of any element. KIMBERLY’S BRIEF
26
17-19. In her second issue, Kimberly contests only the legal sufficiency of the ev-
idence to support the jury’s finding that termination was in the best interest of the
child. KIMBERLY’S BRIEF 20-24. This issue should be overruled.
Termination of the parent-child relationship can only occur if termination is
in the best interest of the child. TEX. FAM. CODE § 161.001(2); APPENDIX 3. The
focus is on the best interest of the child, not the best interest of the parent. See
Dupree v. Tex. Dep’t. of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex.
App.—Dallas 1995, no writ).
A. The Holley Factors
The Texas Supreme Court has recognized nine non-exhaustive factors that a
court may consider in determining whether termination is in a child’s best interest.3
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The Department, as the party
seeking termination, is not required to prove all nine factors. C.H., 89 S.W.3d at
27. The analysis of evidence relating to one factor may be adequate in a particular
situation to support a finding that termination is in the best interest of the child. In
re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.). A best interest
3
The Holley factors include: (1) the desires of the child; (2) the emotional and physical needs
of the child now and in the future; (3) the emotional and physical danger to the child now and in
the future; (4) the parenting abilities of the parties seeking custody; (5) the programs available to
assist these persons; (6) the plans for the child by the parties seeking custody; (7) the stability of
the home or proposed placement; (8) the acts or omissions committed by the parent which may
indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the
acts or omissions committed by the parent. Holley v. Adams, 544 S.W.2d at 367, 372 (Tex.
1976).
27
analysis may be based not only on direct evidence, but also circumstantial evi-
dence, subjective factors, and the totality of the evidence as a whole. In re S.H.A.,
728 S.W.2d 73, 86 (Tex. App.—1987 writ ref’d n.r.e.). Evidence supporting ter-
mination of parental rights is also probative of best interest. C.H., 89 S.W.3d at
28, 45. Sometimes the evidence of the parent’s behavior may be sufficient to al-
low a fact finder to reasonably form a belief or conviction that termination is in the
child’s best interest. In re Z.S., ___S.W.3d ___, No. 05-13-01614-CV, 2014 Tex.
App. LEXIS 2958 (Tex. App.–Dallas, March 17, 2014, no pet.) (citing C.H., 89
S.W.3d at 28; In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no
pet.)) 4;
As the Thirteenth Court aptly stated in its best interest analysis: “Specifical-
ly, cases that involve endangering drug abuse are not the types of cases where the
parent’s wrongful conduct should be ignored.” In re C.C., No. 13-07-00541-CV,
2009 Tex. App. LEXIS 2239, at *30-*31 (Tex. App.—Corpus Christi Apr. 2,
2009, pet. denied) (mem. op.). “In particular, a parent’s drug use and failure to
comply with a family service plan support a finding that termination is in the best
interest of the child.” Id.
4
This case law stands in contrast to Kimberly’s assertion that “the acts or omissions of a parent
which lead to Department intervention cannot, standing alone justify a finding that termination is
in the best interest of the child.” KIMBERLY’S BRIEF 23 (emphasis added). The Department
would also note that the cases Kimberly cites as authority do not directly support her proposition.
KIMBERLY’S BRIEF 23.
28
B. Evidence Relevant to Best Interest Determination
Desires of the child
When a child is too young to express their desires, the factfinder may con-
sider that the child has bonded with the proposed-adoptive family, is well cared for
by them, and has spent minimal time with a parent. In re J.D., 436 S.W.3d 105,
118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The child in this case was only 19 months old at the time of trial. RR 8:1,
162, 9:129.
Kimberly testified that she attended her regularly scheduled visits with the
child early on in the case. RR 9:14, 19, 66. Theresa, on the other hand, described
the contact from August 2013 to June 2014 as “[i]nconsistent.” RR 9:150. Never-
theless, after January 22, 2014, when visits were no longer supervised by place-
ment, Ms. Gonzales testified that Kimberly “lost contact” with her. RR 9:69, 110.
Kimberly contacted Ms. Gonzales for a visit once in April 2014, but Ms. Gonzales
didn’t hear from Kimberly again until a court date in May 2014. RR 9:78-80, 110.
From May 2014 until the September 2014 trial, Kimberly saw Jennifer only six
times, but saw David, the man who put a gun to her head, seven times during the
same time frame. RR 8:139, 179, 9:189. Kimberly once missed a visit because
she slept through her alarm clock. RR 9:184.
29
Theresa responded in the following manner when asked about how taking
care of her granddaughter has changed her life:
Well, I don’t know where to begin. Changed in so many ways. We
own a business and my husband works out of town or he works in
Houston every day. So total adjustment in your life of now we’ve got
to wake up and get a baby ready, get her to school, then go to work,
and then leave work early so you can go get her, get her dinner, all
those things. Not a lot of going out and, you know, your Saturdays are
full of taking care of a baby. They’re certainly not let’s go run and go
out of town for the weekend or – it’s just changed. It’s changed in
every single way. It’s a total different life now that we have a baby.
RR 9:133. In talking about Jennifer, Theresa testified that “we’re just going to
love her.” RR 9:133.
Theresa’s husband Bob also testified in detail about the substantial care they
provide for Jennifer.
We have a system and, basically, in the mornings we try to keep it
where I usually go get her up because [Theresa’s] knees aren’t the
best right now. She’s had knee problems. So I go up the stairs and
get her, bring her down and we have -- we hang out in the bed and
watch TV in the mornings. I go get ready and [Theresa] takes her to
get fed and gets her dressed. I come down and take her to school. I
go to work. I work in Houston every day. I go to work and [Theresa]
goes to work, then we – [Theresa] usually picks her up. I usually
don’t get home early enough. Every once in awhile, I pick her up.
And then my job in the evening is mainly -- a lot of times I feed her or
if I’m not feeding her, I bathe her or get her tub ready. I’m the – I try
to keep everything going, and then get her bed ready and her room
ready, then [Theresa] has chosen -- she wants to put her to bed every
night. I let her do that.
RR 9:166.
30
The jury could considered the “minimal time” Kimberly spent with Jennifer
and the evidence that Jennifer was loved and well cared for by, and bonded to,
Theresa and Bob in support of its best interest finding. J.D., 436 S.W.3d at 118.
This supports the best interest finding.
The Emotional and Physical Needs of the Child Now and in the Future
The Emotional and Physical Danger to the Child Now and in the Future
The Department will address these factors together.
The factors of emotional and physical needs of the child, and the emotional
and physical dangers to the child, favor termination.
The unchallenged predicate findings under section 161.001(1)(E), endanger-
ing conduct, are binding and may be considered as evidence related to the court’s
best interest finding. In re G.S., No 14-14-00477-CV, 2014 Tex. App. LEXIS
10563, at *30 (Tex. App.–Houston [14th Dist.], September 23, 2014, no pet.)
(mem. op.).
A parent’s drug use supports a finding that termination is in the best interest
of the child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007,
no pet.). The factfinder can give “great weight” to the “significant factor” of drug-
related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no
pet.) (quoting Dupree, 907 S.W.2d at 86); see also In re J.N.H., No. 02-11-00075-
CV, 2011 WL 5607614, at *8, 2011 Tex. App. LEXIS 9199, at * 14 (Tex. App.—
Fort Worth, Nov. 17, 2011, no pet.) (mem. op.) (considering a parent’s criminal
31
and drug histories in affirming a trial court’s decision that termination was in the
best interest of a child). A parent’s continued drug use demonstrates “an inability
to provide for [the child’s] emotional and physical needs and provide a stable envi-
ronment for” the child. In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App. LEXIS
234, at *11-*12 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.). “Be-
cause there is evidence that appellant’s past actions [relating to drug use] were un-
suitable, the court could have inferred that similar unsuitable conduct could recur
in the future if the [child is] returned to appellant.” In re E.A., No. 13-06-503-CV,
2007 Tex. App. LEXIS 7159, at *24-*25 (Tex. App.—Corpus Christi Aug. 31,
2007, no pet.) (mem. op.). In deciding the best interest question, the factfinder is
permitted to consider the evidence supporting its finding that frequent and long–
term drug use endangered the child’s welfare. Toliver v. Tex. Dep’t of Family and
Protective Servs., 217 S.W.3d 85, 102 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
Evidence of a parent’s history of exposing her child to domestic violence
weighs in favor of termination. In re A.M., 385 S.W.3d 74, 82-83 (Tex. App. –
Waco 2012, pet denied).
A factfinder may measure a parent’s future conduct by her past conduct and
determine that it is in a child’s best interest to terminate her parental rights. Davis
v. Travis County Child Welfare Unit, 564 S.W.2d 415, 421 (Tex. Civ. App.—
32
Austin 1978, no writ). A factfinder may infer that a parent’s past inability to meet
a child’s physical and emotional needs at the time the child was in the parent’s cus-
tody may indicate the parent’s future inability to meet the child’s physical and
emotional needs if the child is returned to the parent. D.O. v. Tex. Dep’t. of Hu-
man Servs., 851 S.W.2d 351, 356 (Tex. App.—Austin 1993, no writ); May v. May,
829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied); Ray v.
Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is often pro-
logue.”); In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.)
(Parent’s future conduct may be measured by his or her past conduct in determin-
ing whether it is in child’s best interest to terminate parental rights). “Because
there is evidence that appellant’s past actions [relating to drug use] were unsuita-
ble, the trial court could have inferred that similar unsuitable conduct could recur
in the future if the children are returned to appellant.” E.A., 2007 Tex. App.
LEXIS 7159, at *25. The factfinder can infer that the “identified risk factors estab-
lish[ing] endangerment . . . in the past . . . would continue to be present thus en-
dangering the children’s well-being in the future if the children are returned” to the
parent. In re V.A., No. 13-06-237-CV, 2007 Tex. App. LEXIS 805, at *17-*18
(Tex. App.—Corpus Christi Feb. 1, 2007, no pet.) (mem. op).
Additionally, “[m]any of the reasons supporting termination under subsec-
tion O also support the trial court’s best interest finding.” In re E.C.R., 402
33
S.W.3d 239, 249 (Tex. 2013). A parent’s failure to complete those services direct-
ly related to the underlying reasons for the removal is evidence that the children
would continue to be in danger if they were returned to her. In re A.B., No. 04-13-
00246-CV, 2013 Tex. App. LEXIS 10841 at *5 (Tex. App.–San Antonio, August
28, 2013, no pet.) (mem. op.); see also In re O.N.H., 401 S.W.3d 681, 687 (Tex.
App.—San Antonio 2013, no pet.) (father’s lack of compliance with his service
plan showed he was not learning how to protect his children from his wife’s severe
alcoholism).
On appeal, Kimberly does not contest that there was sufficient evidence to
terminate pursuant to TEX. FAM. CODE §§ 161.001(1)(D), (E), (O) and (P). See
KIMBERLY’S BRIEF 19 (“Appellant cannot in good faith challenge the evidence
with regard to the predicate grounds for termination”). In this case, there is evi-
dence of drug use and domestic violence, but Kimberly did not complete the ser-
vices needed to address these issues.
Kimberly’s drug use has not been sufficiently addressed. Kimberly used co-
caine and crushed her Adderall ten years ago when she was 15. RR 8:1, 150, 190.
Because of the cocaine use, at one point “[s]he was emaciated, sick, desperate for
help, wanted help, [and] didn’t want the drugs anymore.” RR 9:122. Kimberly
was using methamphetamine by the age of 20, five years ago. RR 8:1, 148, 164.
34
At the point that methamphetamine use was an “every-once-in-a-while thing”, she
got involved with David. RR 8:158, 158-59, 165.
Because the child was removed due to Kimberly’s “life-style” of drug use,
drug rehabilitation and aftercare were part of her service plan. RR 8:148, 9:62.
Kimberly began her first drug treatment during the case October 17, 2013. RR
8:168. She tested positive for methamphetamine, amphetamine, marijuana and
Benzodiazepines at that time. RR 9:107. After completing that program, she
failed to enroll in the recommended 90-day intensive outpatient program. RR
8:171. Kimberly again tested positive for methamphetamine, amphetamine and
marijuana in January 2014. RR 8:175. Kimberly was in the car with David in
January 2014 when Officer Ocanas was handling a “controlled purchase” of drugs
as part of his investigation against David. RR 8:140. In March 2014, there was an
allegation that Kimberly was living with a friend in the Brenham Housing Authori-
ty subdivision and that the two of them were using methamphetamine while chil-
dren were in the home. RR 9:75. Kimberly admitted that she tested positive for
methamphetamine and amphetamine and admitted she used marijuana April 2014.
RR 8:182. In June 2014, 95 days prior to trial, Kimberly again tested positive for
methamphetamine, amphetamine and marijuana. RR 8:1, 183. She completed her
second attempt at drug treatment 47 days prior to trial. RR 8:1, 185. Kimberly de-
nied under oath that the second rehab center required aftercare, but Ms. Gonzales
35
testified that Kimberly’s case manager at the Austin Recovery Center said it was
required after Kimberly’s completion of her second drug treatment program. RR
8:185, 9:83.
Prior to the removal, there was a history of domestic violence between Kim-
berly and David. RR 8:120. This is why the service plan included addressing do-
mestic violence in drug rehabilitation and individual counseling. RR 9:62. The
Department was not able to set up counseling because Kimberly was in drug reha-
bilitation, or would not return phone calls, or did not let the Department know what
city she was living in. RR 9:24, 69, 70, 79, 82. During the pendency of this case,
David put a gun to Kimberly’s head. RR 8:138, 178-79. Kimberly repeatedly stat-
ed that she would leave David, before eventually reuniting with him. RR 8:178,
180, 9:76, 78. From May 2014 until the time of trial, Kimberly went to see David
in jail (at least once using a drug dealer for a ride) more often than she visited Jen-
nifer. RR 8:189.
As a factfinder can give “great weight” to the “significant factor” of drug-
related conduct, the trial court could have considered Kimberly’s admitted history
of drug use, and that she continued to consume illegal substances knowing her pa-
rental rights were in jeopardy, and concluded that termination of her parental rights
is in Jennifer’s best interest. J.O.A., 283 S.W.3d at 346; Dupree, 907 S.W.2d at
86; F.A.R., 2005 Tex. App. LEXIS 234, at *11-*12 (continued drug use demon-
36
strates “an inability to provide for [the child’s] emotional physical needs” and pro-
vide a stable environment for” the child); Toliver, 217 S.W.3d at 102. The trial
court also could have inferred that Kimberly’s drug use would continue in the fu-
ture, especially in light of her failure to comply with outpatient drug treatment.
E.A., 2007 Tex. App. LEXIS 7159, at *24-*25 (“[b]ecause there is evidence that
appellant’s past actions [relating to drug use] were unsuitable, the court could have
inferred that similar unsuitable conduct could recur in the future if the [child is] re-
turned to appellant.”). Considering this evidence, the trial court could have deter-
mined that Kimberly’s drug and alcohol use present an emotional danger to Jen-
nifer as she would come in and out of her life, thereby disrupting any permanency
or stability for the child. B.S.W., 2004 Tex. App. LEXIS 11695, at *25-26 (Tex.
App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).
Additionally, the jury could have properly considered: (1) Kimberly’s histo-
ry of crushing and snorting her Adderall pills; (2) her 5-year history of metham-
phetamine use; (3) her repeated use of methamphetamine, amphetamine and mari-
juana during this case when she knew her parental rights were in jeopardy; (4) her
repeated failure to participate in required aftercare after her two stints in drug
treatment; (5) the domestic violence between David and Kimberly, including the
incident in which David put a gun to Kimberly’s head during the pendency of this
case; (6) Kimberly’s failure to end her abusive relationship with David by repeat-
37
edly promising to leave him before reuniting with him; (7) Kimberly’s visitation
with David compared to Kimberly’s visitation with Jennifer; (8) her failure to ad-
dress domestic violence in individual counseling; and, (9) Kimberly’s housing in-
stability before and throughout the case, and as “[p]ast is often prologue”, conclud-
ed that Kimberly would continue to expose Jennifer to emotional and physical
danger, and would be unable meet the child’s emotional and physical needs now
and in the future, supporting its best interest determination. May, 829 S.W.2d at
377; Ray, 832 S.W.2d at; D.S., 333 S.W.3d at 384; E.A., 2007 Tex. App. LEXIS
7159, at *25; V.A., No. 13-06-237-CV, 2007 Tex. App. LEXIS 805 at *17-*18;
A.B., 2013 Tex. App. LEXIS 10841 at *5; O.N.H., 401 S.W.3d at 687.
The Parenting Ability of the Individuals Seeking Custody
The Programs Available to Assist the Party Seeking Custody
The Department will address these two factors together.
The evidence of Kimberly’s parenting abilities, or lack thereof, favor termi-
nation as well.
A parent’s inability to provide adequate care for a child, lack of parenting
skills, and poor judgment may be considered when looking at the child’s best in-
terests. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.–Fort Worth 2003, no pet.).
Parental drug abuse is obviously reflective of poor judgment and is also a factor to
be considered in determining a child’s best interests. M.R., 243 S.W.3d at 820. A
parent’s lack of motivation to learn how to improve parenting skills is evidence
38
supporting the best interest determination. Wilson v. State, 116 S.W.3d 923, 930
(Tex. App.—Dallas 2003, no pet.). In reviewing the parental abilities of a parent, a
factfinder can consider the parent’s past neglect or inability to meet the physical
and emotional needs of the children. D.O., 851 S.W.2d at 358. Further, the fact-
finder can infer from a parent’s failure to take the initiative to avail herself of the
programs offered by the Department that the parent “did not have the ability to mo-
tivate herself to seek out available resources needed now or in the future”. In re
W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.). A parent’s
“showing of poor judgment currently and in the past” demonstrates an inability to
provide adequate care for the child. Wischer v. Tex. Dep’t of Family and Protec-
tive Servs., No. 03-12-00165-CV, 2012 Tex. App. LEXIS 7523, at *36 (Tex.
App.—Austin Aug. 29, 2012, no pet.) (mem. op.). A parent’s testimony regarding
his “hopes and desires for the future”, without demonstration of the necessary
changes to accomplish those goals “reveals that [the parent] was [not] motivated to
improve or to learn how to improve [his/her] parenting skills.” In re C.N.C., No.
13-12-00164, 2012 Tex. App. LEXIS 7431, *23 (Tex. App.—Corpus Christi Aug.
27, 2012, no pet.) (mem. op.).
Kimberly had a five year history of abusing methamphetamine at the time of
trial. RR 8:1, 148, 164. She admitted that the first time she entered a drug rehabil-
itation program, she felt “hoaxed” about the amount of time she was required to be
39
there, and she was more interested in not getting caught on future drug tests than in
staying clean. RR 8:168, 170. She was discharged from drug rehabilitation on
December 16, 2013, failed to attend required aftercare, and admittedly relapsed
two weeks later on New Year’s Eve. RR 8:171, 173-74. By March 2014, Kimber-
ly talked to both Ms. Gonzales and Officer Ocanas about going back to drug treat-
ment “as soon as possible”. RR 8:139, 180, 9:76. She actually didn’t admit herself
to a second drug rehabilitation program until June 2014, 75 days prior to trial. RR
8:1, 184. After her second drug treatment Kimberly again failed to attend required
aftercare. RR 8:185, 9:83. Kimberly admitted to filling a prescription for 16 pills
of hydrocodone after completion of the second attempt at drug rehabilitation. RR
9:48.
Kimberly concedes she did not complete her court ordered services in viola-
tion of subsection (O). KIMBERLY’S BRIEF 19. The evidence shows Kimberly
made no attempt to set up services on her own. RR 9:37. Significantly, the De-
partment could not set up Kimberly’s services because she was in drug treatment,
or would not return phone calls, or did not let the Department know what city she
was living in. RR 9:24, 62, 69, 70, 79, 82.
The jury could have considered this evidence that Kimberly: (1) abused
drugs prior to the case and continued abusing drugs during the case when she knew
her rights were in jeopardy; (2) failed to participate in aftercare following her ini-
40
tial drug treatment, and relapsed; (3) again failed to participate in aftercare follow-
ing her second drug treatment; (4) remained in an abusive relationship that includ-
ed domestic violence during the pendency of the case; (5) did not participate in the
required counseling to address domestic violence; (6) lacked stable housing and
employment throughout the pendency of the case; and, (7) only sporadically at-
tended visitation with the child during the pendency of the case, and determined
that Kimberly had poor parenting skills, was not motivated to improve them, did
not timely avail herself of programs offered by the Department, and would not
have the ability to motivate herself to seek out available resources needed now or
in the future. Wilson, 116 S.W.3d at 925; J.N.R., 982 S.W.2d at 143 W.E.C., 110
S.W.3d at 245; D.O., 851 S.W.2d at 356.
These factors weigh heavily in favor of the jury’s best interest determina-
tion.
The Plans for the Child by the Individuals or by the Agency Seeking Custody
The factfinder may compare the parent’s and the Department’s plans for the
child and can consider whether the plans and expectations of each party are realis-
tic or weak and ill-defined. D.O., 851 S.W.2d at 356. “Evidence of a recent im-
provement does not absolve a parent of a history of irresponsible choices.” In re
S.P.M., No. 07-13-00282-CV, 2014 Tex. App. LEXIS 614, at *24 (Tex. App.—
Amarillo Jan. 21, 2014, no pet.) (mem. op.) (citations omitted). “Given [parents’]
41
past performance, the trial court, as fact finder, was free to reject [parents’] asser-
tions of future stability and having learned from their mistakes.” Id. at *25.
Kimberly had a five year history of abusing methamphetamine by the time
of trial. RR 8:1, 148, 164. She admitted that the first time she entered a drug re-
habilitation program during the case, she felt “hoaxed” about the amount of time
she was required to be there, and she was more interested in not getting caught on
future drug tests than she was interested in staying clean. RR 8:168, 170. She
was discharged from drug rehabilitation in December 2013, failed to attend after-
care, and admitted to relapsing on New Year’s Eve. RR 8:171, 173-74. By March,
2014, Kimberly talked to both Ms. Gonzales and Officer Ocanas about going back
to rehab “as soon as possible”. RR 8:139, 180, 9:76. She did not enter a second
drug rehabilitation program until June 2014, 75 days prior to trial. RR 8:1, 184.
After her second drug treatment, she failed to attend aftercare. RR 8:185, 9:83.
Kimberly admitted to filling a prescription for 16 pills of hydrocodone after com-
pletion of the second drug treatment program. RR 9:48.
On the first day of trial, Kimberly claimed that her “permanent plan” was to
live with her uncle in Hempstead, Texas. RR 8:196. She indicated that she had
just gotten a job at a grocery store in Hempstead, and was going to start that job
after trial. RR 8:196, 9:26. Kimberly claimed that she was going to stay there and
42
work on “trying to get my feet underneath me from the road I just got off of.” RR
8:196.
By the second day of trial, however, Kimberly claimed that her aunt in Hou-
ston offered her a four-bedroom home for Kimberly and Jennifer to live in. RR
9:52. When asked about the logistics of working in Hempstead and living in Hou-
ston, Kimberly conceded that “this is not a for sure thing.” RR 9:55.
Kimberly admitted that she had “not yet” looked into daycares for Jennifer,
and didn’t know how much they would cost. RR 9:53, 56.
The Department’s plan with termination of parental rights is to allow There-
sa and Bob to adopt Jennifer. RR 9:73. Jennifer has been placed with Theresa and
Bob for more than a year. RR 8:1, 115-16. They have already set up day care. RR
9:133. Theresa and Bob have worked out a division of labor between the two of
them, and have adjusted to life with a baby, want to adopt Jennifer, and love her.
RR 9:133, 166, 169.
The jury could have (1) declined to absolve Kimberly of her history of poor
choices in using drugs prior to and throughout the pendency of the case; (2) disbe-
lieved her claim that she had learned her lesson and planned to start a job; and, (3)
found the Department’s plan of termination and adoption, rather than Kimberly’s
unrealistic, weak and ill-defined plans, better served the child’s interest, supporting
43
it finding that termination is in the child’s best interest. S.P.M., 2014 Tex. App.
LEXIS 614 at *24; D.O., 851 S.W.2d at 356.
This factor strongly supports the best interest finding.
The Stability of the Home or Proposed Placement
Stability and permanence are paramount in the upbringing of children. In re
T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied). “Without
stability, income, or a home, appellant is unable to provide for the child’s emotion-
al and physical needs.” C.A.J., 122 S.W.3d at 894. A parent’s failure to show that
she is stable enough to parent a child for any prolonged period entitles the factfind-
er “to determine that this pattern would likely continue and that permanency could
only be achieved through termination and adoption.” In re B.S.W., 2004 Tex. App.
LEXIS 11695 at *26, 2004 WL 2964015, at *9.
Kimberly could not provide stability for herself before Jennifer’s birth up
through the completion of the Department’s investigation. Kimberly testified that
she decided to leave the home when she was seventeen. RR 8:151-52. Kimberly
claimed she did not run away because her mother knew where she was. RR 8:151-
52. Theresa testified that Kimberly ran away and testified that she was not always
able to find Kimberly or maintain contact. RR 9:121. Kimberly testified that she
then moved in with a friend “L.M.” who used to run a bible study. RR 8:152. She
moved out “[n]ot long” after moving in because their boyfriends did not get along.
44
RR 8:152. Kimberly claimed she does not remember where she lived after that.
RR 8:152. At some point she reached an agreement with Theresa to move back
home. RR 8:153. She testified that she thought her parents were too controlling,
so she moved out. RR 9:153.
She then moved in with her boyfriend “N.N.” in Brenham for a few months.
RR 8:154. She left him when “he was getting on [her] nerves” and moved in with
her friend “E.B.” in Brenham. RR 8:155. Kimberly testified that she stayed with
E.B. for almost six months before she moved in with her boyfriend “C.L.”, first in
Brenham for four months before moving to College Station. RR 8:155. They were
there two or three months before they moved back to Brenham. RR 8:156. Kim-
berly testified that after her breakup with C.L. her parents helped her obtain a
house and a car. Kimberly’s roommate made her leave four months later because
Kimberly squandered their money on drugs. RR 9:11. Kimberly then testified that
she moved in with K.T. and stayed there almost a year. RR 8:157. Kimberly testi-
fied that she next moved in with her friend T.B. RR 8:157.
Theresa testified that she lost contact again with her daughter once Kimberly
started dating David. RR 9:126. Kimberly testified that she was living in King-
swood with her cousin and his wife when Kimberly became pregnant. RR 8:159.
She had only been in Kingswood a month when she came back to Brenham for the
weekend and David was arrested. RR 8:160. As a result of the arrest, “I wound up
45
staying in Brenham,” Kimberly explained. RR 8:160. She was living with Da-
vid’s mother at that time for a period of about three months. RR 8:160. Kimberly
testified that she then moved in with her girlfriend “Natalie” for two months before
completing the last three months of her pregnancy at Theresa’s home. RR 8:160.
When Jennifer was six weeks old, Kimberly and Jennifer started moving
around. RR 8:162. Kimberly vacillated between Theresa’s home and David’s res-
idence, at the home of his uncle. RR 8:163. As Kimberly explained, “Having a
baby and trying to live out of a suitcase is not fun.” RR 8:163. Kimberly testified
she was staying at an unnamed friend’s house with David when the Department in-
itially contacted her. RR 8:161.
Kimberly also couldn’t demonstrate stability after the Department was ap-
pointed the temporary managing conservator of Jennifer. Ms. Gonzales testified
that Kimberly had a “chronic problem” keeping her informed about her living ar-
rangements. RR 9:65. Kimberly indicated that the day after the completion of the
first drug rehabilitation program she moved in with her grandmother in Beaumont,
but tried to get subsidized housing in Brenham. RR 8:171. Before the Brenham
housing application came through, Kimberly decided to move in with David at a
Hotel in Hempstead until the end of February 2014. RR 8:173, 177.
Ms. Gonzales testified that in the middle of March 2014, there was an alle-
gation that Kimberly was living with a friend in the Brenham Housing Authority
46
subdivision. RR 9:75. However, Kimberly and David had moved to a new hotel
by March 2014. RR 8:178. Kimberly claimed that she moved in with a friend
named “J.M.” (no relation) because she wanted to get away from David. RR
8:180. That lasted for about a month. RR 8:182. Thereafter, Kimberly and David
stayed at a house with “a friend” before moving into yet another hotel in Waller.
RR 8:182-83. After David was arrested in May 2014, Kimberly testified that she
lived in “Bluebonnet Hills” with a friend she called “Clayton”. RR 7:183, 8:136.
Kimberly testified that at the time of trial she was residing with her uncle in Hemp-
stead. RR 8:185-86.
Kimberly claimed at trial that she planned to live with her uncle in Home-
stead and “try to get my feet underneath me” or move into an aunt’s home in Hou-
ston. RR 8:196, 9:55.
Kimberly admitted that she only worked during the pendency of the case
while she was enrolled at the first drug treatment program. RR 8:194. She
claimed she had a job lined up with Brookshire Brothers in Hempstead, but was
not going to start it until after the trial. RR 8:196, 9:26.
In contrast, Theresa testified that she and her husband had been living in the
same home for sixteen years. RR 9:138, 148. Jennifer had been placed in their
home for more than a year at the time of trial. RR 8:1, 115-16. They love her. RR
47
9:133. Theresa promised the jury that if they were able to adopt, “[w]e’re going to
continue to do what we’ve been doing.” RR 9:133.
The jury could have considered the evidence of (1) Kimberly’s history of in-
stability spanning her entire adult life; (2) her lack of income outside her boy-
friend’s drug dealing; and, (3) the stability and good care provided by the child’s
placement, and determined that Kimberly is “unable to provide for the child’s emo-
tional and physical needs” and developed a firm conviction or belief that Kimber-
ly’s “pattern would likely continue and that permanency could only be achieved
through termination and adoption,” supporting the finding that termination was in
the best interest of the child. C.A.J., 122 S.W.3d at 894; B.S.W., 2004 Tex. App.
LEXIS 11695 at *26.
This factor supports the best interest determination.
Acts or Omissions of the Parent Which May Indicate that the Existing Parent-
Child Relationship Is Not a Proper One
Kimberly has a five-year history with methamphetamine. She used drugs
during the pendency of this case despite knowing that her parental rights were in
jeopardy. During the pendency of this case, she admitted herself to two drug
treatment programs, completing the last one only 47 days prior to trial, but failed to
enroll in an aftercare program both times. She has not availed herself of individual
counseling to address the domestic violence issues, and even though David held a
48
gun to her head during the pendency of this case, from May until the trial in Sep-
tember, she saw David in jail more often than she saw Jennifer.
This factor strongly supports the jury’s best interest determination.
Excuses for the Parent’s Acts or Omissions
Kimberly does not present any excuses for her acts or omissions which
would mitigate against the acts or omissions which would indicate that the parent-
child relationship is not a proper one. KIMBERLY’S BRIEF, passim. This factor
supports the jury’s best interest determination.
C. Conclusion
Based on the foregoing, the evidence allowed the jury to reasonably form a
firm belief or conviction that termination of Kimberly’s parental rights to Jennifer
is in the child’s best interest. Accordingly, Kimberly’s challenge to the jury’s best
interest determination should be overruled.
II. RESPONSE TO KIMBERLY’S ISSUE ONE: After a removal hearing before
which the Department did not have custody of the child, the trial court,
without the benefit of an affidavit of indigence, appointed an attorney once
Kimberly appeared in opposition to the suit. Did the trial court err in not
appointing an attorney for Kimberly until 7 months prior to trial?
In her first issue, Kimberly claims that the trial court erred in failing to ad-
monish her at the initial hearing about her right to court appointed counsel and in
failing to appoint her counsel prior to the February 18, 2014 hearing. KIMBERLY’S
49
BRIEF 14-16. This issue should be overruled because the trial court appointed
Kimberly an attorney once she appeared in opposition to the suit. Additionally, the
trial court was under no duty to admonish at a removal hearing before which the
Department did not have custody of the child.
A. Kimberly Appointed Counsel at Appropriate Time
The trial court appointed an attorney for Kimberly at the first appropriate
opportunity. The Texas legislature has afforded indigent parents in state-initiated
termination proceedings the right to counsel. In re K.M.L., 443 S.W.3d 101, 121
(Tex. 2014) (Lehrmann, J., concurring) (citing TEX. FAM. CODE §§ 107.013,
262.201; In re B.G., 317 S.W.3d 250, 253-54 (Tex. 2010)). In cases like this one,
a trial court shall appoint an attorney to represent an indigent parent who responds
in opposition to the termination or appointment of the Department as conservator
of the child. TEX. FAM. CODE § 107.013(a)(1) (Lexis 2014). A parent’s filing of
an affidavit of indigency is “the act which would trigger the process for mandatory
appointment of an attorney ad litem . . . .” In re K.L.L.H., No. 06-09-00067-CV,
2010 Tex. App. LEXIS 154 at *14, 2010 WL 87043, at *5 (Tex. App.—Texarkana
Jan. 12, 2010, pet. denied) (mem. op.). This Honorable Court recently addressed
the timing of the appointment of counsel:
Considering the mandatory nature of the appointment of counsel upon a
finding of indigency, and the appointed attorney’s specific obligations in
connection with representing an indigent parent, a trial court should address
a parent’s affidavit of indigence as soon as possible—before the next critical
50
stage of the proceedings, whether it be a hearing, a mediation, a pretri-
al conference, or, in particular, a trial on the merits, and allow a reasonable
time for appointed counsel to make necessary preparations.
V.L.B., 445 S.W.3d 802, No. 01-14-00201-CV, 2014 Tex. App. LEXIS 10043,
*12-*13 (Tex. App.–Houston [1st Dist.] September 4, 2014, no pet.) (op. on reh’g).
In V.L.B., the mother filed her affidavit of indigence a week before the trial setting,
which was two months before the dismissal date. V.L.B., 2014 Tex. App. LEXIS
10043 at *13. The trial court in that case appointed counsel after commencement
of trial. V.L.B., 2014 Tex. App. LEXIS 10043 at *6. This Court held that this was
reversible error because the commencement of trial “was a critical stage of the
termination proceedings”. V.L.B., 2014 Tex. App. LEXIS 10043 at *13.
In this case, Kimberly did not appear in opposition at the adversary hearing.
Under examination by the Department’s counsel on September 26, 2013, Kimberly
agreed to the placement of her child with her mother and stepfather, and agreed to
the Department’s involvement. RR 2:9-10. In examination by the attorney ad li-
tem for the child, Kimberly acknowledged that she had a right to contest that hear-
ing, but choose not to because this was in Jennifer’s best interest. RR 2:10. At the
status hearing on October 14, 2013, Ms. Gonzales testified that Kimberly requested
court-appointed counsel. RR 3:10. In response, the trial court indicated there was
no application for counsel on file, but asked that the Department give the mother
the appropriate paperwork. RR 3:10. At the permanency hearing on February 11,
51
2014, a representative of the Department testified that both parents expressed a de-
sire for an attorney. RR 4:9. Kimberly was present at that hearing. RR 4:2. The
record is devoid of any affidavits of indigence executed by Kimberly until after the
trial on the merits. See CR 1:183. Nevertheless, the trial court orally appointed
her an attorney at the February 2014 permanency hearing, which was followed up
by a written order only a week later. RR 4:21, 26; CR 1:105. Kimberly’s counsel
participated at the next hearing, which was called a “status hearing”, on May 6,
2014. RR 5:1, et seq. Trial did not begin until September 8, 2014, nearly seven
months after the appointment of counsel. RR 8:1.
Because the act that would “trigger” the mandatory appointment of counsel
did not occur until after trial, the trial court appointed counsel at the first hearing
during which Kimberly appeared in opposition to the Department, the appointment
was made before the next critical stage in the case, and the trial court allowed the
court-appointed counsel nearly seven months to prepare for trial, the trial court did
not commit any reversible error by appointing counsel when it did. TEX. FAM.
CODE § 107.013(a)(1); In re K.L.L.H., 2010 Tex. App. LEXIS 154 at *14; V.L.B.,
2014 Tex. App. LEXIS 10043 at *12-*13.
B. TEX. FAM. CODE § 262.201
Kimberly’s reliance on TEX. FAM. CODE § 262.201 in arguing that the
trial court had a duty to admonish is misplaced. See KIMBERLY’S BRIEF 13-
52
16. Kimberly relies on the following provision in arguing that the trial court
had a duty to inform her of the right to court-appointed counsel:
(a) Unless the child has already been returned to the parent, managing
conservator, possessory conservator, guardian, caretaker, or custodian
entitled to possession and the temporary order, if any, has been dis-
solved, a full adversary hearing shall be held not later than the 14th
day after the date the child was taken into possession by the govern-
mental entity, unless the court grants an extension under Subsection
(a–3).
(a–1) Before commencement of the full adversary hearing, the court
must inform each parent not represented by an attorney of:
(1) the right to be represented by an attorney; and
(2) if a parent is indigent and appears in opposition to the suit,
the right to a court-appointed attorney.
(a–2) If a parent claims indigence and requests the appointment of an
attorney before the full adversary hearing, the court shall require the
parent to complete and file with the court an affidavit of indigence.
The court may hear evidence to determine whether the parent is indi-
gent. If the court determines the parent is indigent, the court shall ap-
point an attorney to represent the parent.
(a–3) The court may, for good cause shown, postpone the full adver-
sary hearing for not more than seven days from the date of the attor-
ney’s appointment to provide the attorney time to respond to the peti-
tion and prepare for the hearing. The court may shorten or lengthen
the extension granted under this subsection if the parent and the ap-
pointed attorney agree in writing. If the court postpones the full adver-
sary hearing, the court shall extend a temporary restraining order is-
sued by the court for the protection of the child until the date of the
rescheduled full adversary hearing.
(b) At the conclusion of the full adversary hearing, the court shall or-
der the return of the child to the parent, managing conservator, pos-
sessory conservator, guardian, caretaker, or custodian entitled to pos-
53
session unless the court finds sufficient evidence to satisfy a person of
ordinary prudence and caution that:
(1) there was a danger to the physical health or safety of the
child which was caused by an act or failure to act of the person
entitled to possession and for the child to remain in the home is
contrary to the welfare of the child;
(2) the urgent need for protection required the immediate re-
moval of the child and reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were
made to eliminate or prevent the child’s removal; and
(3) reasonable efforts have been made to enable the child to re-
turn home, but there is a substantial risk of a continuing danger
if the child is returned home.
TEX. FAM. CODE § 262.201 (Lexis 2014); APPENDIX 4. A “full adversary hearing”
as described here is supposed to occur “[u]nless the child has already been returned
to the parent”. TEX. FAM. CODE § 262.201(a). In fact the trial court is obligated to
“order the return of the child to the parent” unless certain findings are made. TEX.
FAM. CODE § 262.201(b). This code provision applies to instances in which the
Department took possession of the child without a hearing.
C. TEX. FAM. CODE § 262.205
That type of hearing can be compared to a hearing in which the Department
did not have prior custody of the child.
Hearing When Child Not in Possession of Governmental Entity
(a) In a suit requesting possession of a child after notice and hearing,
the court may render a temporary restraining order as provided by
Section 105.001. The suit shall be promptly set for hearing.
54
(b) After the hearing, the court may grant the request to remove the
child from the parent . . . if the court finds sufficient evidence to satis-
fy a person of ordinary prudence and caution that:
(1) reasonable efforts have been made to prevent or eliminate
the need to remove the child from the child’s home; and
(2) allowing the child to remain in the home would be contrary
to the child’s welfare.
TEX. FAM. CODE § 262.205 (Lexis 2014); APPENDIX 5. The right to admonish-
ments regarding court-appointed counsel that are mandated in section 262.201 are
not present in section 262.205. Compare TEX. FAM. CODE § 262.201 to § 262.205.
This case is governed by section 262.205, rather than section 262.201, be-
cause the Department filed “a suit requesting possession of a child”; it did not take
possession of Jennifer without a hearing. TEX. FAM. CODE § 262.205. Ms. Jarvis
testified that she asked Kimberly to place Jennifer out of the home on August 21,
2013, based on a positive drug test. RR 8:115. In response, Kimberly asked if she
could be the one to leave her parents’ home and let Jennifer stay with Theresa and
Bob. RR 8:16. Ms. Jarvis testified that at a meeting between the family and the
Department, Theresa and her husband indicated that it would preferable for the
Department to file for temporary custody in order to monitor the parents’ progress.
RR 8:118. In its original petition, filed September 12, 2013, the Department re-
quested that the case be set for temporary hearing and that it be appointed the tem-
porary managing conservator after that hearing. CR 1:2, 4. The Department spe-
55
cifically requested a hearing under § 262.205 of the Texas Family Code. CR 1:5.
The trial court set a hearing expressly “to determine whether the Department’s re-
quest for temporary orders in this case should be granted.” CR 1:14. The order
rendered as a result of that hearing was expressly made pursuant to TEX. FAM.
CODE § 262.205. CR 1:18. The findings the Court made were pursuant to the
lower standard in section 262.205(b), not the higher standard of in section
262.201(b). CR 1:17. The hearing in this case occurred before the Department
had possession of the child, and was held pursuant to TEX. FAM. CODE § 262.205.
Therefore, the admonition from § 262.201(a-1) was inapplicable to this case5.
Kimberly has failed to show the trial court created reversible error by ap-
pointing her an attorney without the required affidavit of indigence almost seven
months prior to trial. She was not entitled to any statutorily mandated admoni-
tions. Therefore, her first issue should be overruled.
PRAYER
For the reasons set out in this brief, the Department respectfully requests that
this Honorable Court affirm the judgment of the trial court terminating Kimberly’s
parental rights to Jennifer.
5
Kimberly also complains that she did not receive the admonition from TEX. FAM. CODE §
262.102(d). KIMBERLY’S BRIEF 13. However, that admonition pertained to temporary orders or
attachments obtained without prior notice or hearing. TEX. FAM. CODE § 262.102 (Lexis 2014).
There was no such order or attachment in this case. CR 1:passim. Therefore, this code provision
is also inapplicable.
56
Respectfully submitted,
/s/ Mark T. Zuniga
Mark T. Zuniga, Appellate Attorney
Office of General Counsel
Texas Department of Family and Protective
Services
2401 Ridgepoint Drive, Bldg. H-2
MC: Y-956
Austin TX 78754
Tel.: (512) 929-6617
Fax: (512) 339-5876
Mark.Zuniga@dfps.state.tx.us
State Bar No. 24013804
Attorney for Appellee
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney of record certifies that the Brief of Appellee contains 14-point
typeface for the body of the brief, 12-point typeface for footnotes in the brief, and
contains 13,712 words, excluding those words identified as not being counted in
appellate rule of procedure 9.4(i)(1) and was prepared on Microsoft Word 2010®.
/s/ Mark T. Zuniga
Mark T. Zuniga, Appellate Attorney
57
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the BRIEF
OF APPELLEE was served on each individual below on December 30, 2014 by elec-
tronic mail.
Mary Hennessy
Attorney for Appellant K.M.
P.O. Box 2536
Brenham, TX 77834
Mhennessy.attorney@gmail.com
Susan Deski
Attorney ad litem for the child
P.O. Box 1798
Brenham, Texas 77834
sdeski@hotmail.com
/s/ Mark T. Zuniga
Mark T. Zuniga, Appellate Attorney
xc: Renee Ann Mueller
100 East Main, Ste 200
Brenham, TX 77833
rmueller@wacounty.com
58
APPENDICES
APPENDIX 1
CAUSE NO. 7443
IN THE INTEREST OF § IN COUNTY COURT
§
§ AT LAW
§
A CHILD § WASHINGTON COUNTY, TEXAS
ORDER OF TERMINATION
On September 8, 2014 through September 10, 2014, the Court heard this case.
1. Appearances
1.1. The Department of Family and Protective Services ("the Department") appeared
through SAMANTHA GONZALES, caseworker, and by attorney, RENEE
MUELLER and announced ready.
' l
1.2. Respondent Mother K1f11 \x,nv\
0 appeared in person and annoimced ready.
0 appeared through attorney of record Michael Casaretto and announced ready.
!!::!"appeared in person and through attorney of record Michael Casaretto and
announced ready.
0 waived issuance and service of citation by waiver duly filed.
0 agreed to the terms of this order as evidenced by signature below.
0 although duly and properly notified, did not appear and wholly made default.
0 was not notified, and did not appear.
1.3. Respondent Presumed Father D'z\~~,1
0 appeared in person and announced ready.
0 appeared through attorney of record Josh Clover and announced ready.
0 appeared in person and through attorney of record Josh Clover and announced
ready.
g,. waived issuance and service of citation by waiver duly filed.
t:1 agreed to the terms of this order as evidenced by signature below.
0 although duly and properly notified, did not appear and wholly made default.
0 was not notified, and did not appear.
1.4. DESKI, appointed by the Court as Attorney Ad Litem for the child the
of this suit,
ppeared and announced ready.
0 agreed to the terms of this order as evidenced by signature below.
0 although duly and properly notified, did not appear and wholly made default.
FILED
AT3·.tf5 O'CLOCK_f.LM
OCT 0 2 2014
~= 186
7443
ASAP2013
1.5. CASA FOR KIDS, appointed by the Court as Guardian Ad Litem for the child
~subject of this suit,
Ia appeared and announced ready.
D agreed to the terms of this order as evidenced by signature below.
D although duly and properly notified, did not appear and wholly made default.
2. Jurisdiction and Service of Process
2.1. The Court, having examined the record and heard the evidence and argument of
counsel, finds the following:
2.1.1. a request for identification of a court of continuing, exclusive jurisdiction
has been made as required by Section 155.101, Texas Family Code.
2.1.2. this Court has jurisdiction of this case and of all the parties and that no
other court has continuing, exclusive jurisdiction of this case.
2.2. The Court, having examined the record and heard the evidence and argument of
counsel, finds that the State of Texas has jurisdiction to render final orders
regarding the child the subject of this suit pursuant to Subchapter C, Chapter 152,
Texas Family Code, by virtue of the fact that Texas is the home state of the child.
2.3. The Court fmds that all persons entitled to citation were properly cited.
3. Jury
A jury was duly selected. The Court submitted this case to the jury on questions, and the
jury returned its fmdings on those questions. The jury's findings were received by the
Court and filed of record. The questions submitted to the jury and the findings on those
questions are approved by the Court and incorporated in this order.
4. Record
The record of testimony was duly reported by the court reporter for the County Court at
Law of Washington County.
5. TheChild
The Court fmds that the following child is the subject of this suit:
Name:
Sex:
Birth Date: -
Present Residence: relative's home
Driver's License Number: n/a
Order ofTennination 7443
Page2 ASAP2013
187
6. Termination of Respondent Mother K, ••s Parental Rights
6.1. The Court finds by clear and convincing evidence that termination of the parent-
child relationship between K . and the child the subject of this suit is
in the child's best interest.
6.2. Further, the Court fmds by clear and convincing evidence that K \
has:
6.2.1. knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of
the child, pursuant to§ 16J.OOI(l)(D), Texas Family Code;
6.2.2. 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, pursuant to§ l61.00l(l)(E), Texas Family Code;
6.2.3. failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return of the
child who has 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 child's removal from the parent
under Chapter 262 for the abuse or neglect of the child, pursuant to
§ 161.001(1)(0), Texas Family Code;
6.2.4. used a controlled substance, as defined by Chapter 481, Health and Safety
Code, in a marmer that endangered the health or safety of the child, 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 to § 161.001(l)(P),
Texas Family Code;
6.3. IT IS THEREFORE ORDERED that the parent-child relationship between
K1 and the child the subject of this suit is terminated.
7. Termination of Respondent Father 0(1:v,d ~·s Parental Rights
7.!. The Court finds by clear and convincing evidence that termination of the parent-
child relationship between D and the child J
, is in the child's best interest.
7.2. Further, the Court finds by clear and convincing evidence that Da'"'
has:
7.2.1. executed before or after the suit is filed an unrevoked or irrevocable
affidavit of relinquishment of parental rights as provided by Chapter 161,
Texas Family Code, pursuant to§ 161.001(1)(K), Texas Family Code;
Order ofTennination 7443
Page 3 ASAP 2013
188
7.3. IT IS THEREFORE ORDERED that the parent-child relationship between
D':A·,J . and the child J,""r' is terminated.
8. Interstate Compact
The Court fmds that Petitioner has filed a verified allegation or statement regarding
compliance with the Interstate Compact on the Placement of Children as required by
§ 162.002(b)(l) of the Texas Family Code.
9. Managing Conservatorship: J.!(c"'"
9.1. The Court finds that the appointment of the Respondents as permanent managing
conservator of the child is not in the child's best interest because the appointment
would significantly impair child's physical health or emotional development.
9.2. IT IS ORDERED that the DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES is appointed Permanent Managing Conservator of
Jii:/n ('" ~~ r a child the subject of this suit, with the rights and duties
specified in§ 153.371, Texas Family Code; the Court finding this appointment to
be in the best interest of the child.
9.2.1. In addition to these rights and duties, IT IS ORDERED that the
Department is authorized to consent to the medical care for J.
under§ 266.004, Texas Family Code.
10. Required Information Regarding the Parties and Child
10.1. The child's information is provided above; the information required of each party
not exempted from such disclosure is:
10.1.1.
Driver's License:
Current address:
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:
10.1.2.
Driver's License:
Current address:
Home telephone number:
Name of employer:
Address of employment:
Work telephone number:
Orner ofTenninalioo 7443
Page4 ASAP2013
189
10.2. IT IS ORDERED that each parent, who has not previously done so, provide
information regarding the medical history of the parent and parent's ancestors on
the medical history report form, pursuant to§ 161.2021, Texas Family Code.
11. Continuation of Court-Ordered Ad Litem or Advocate
11.1. The Court fmds that the child the subject of this suit will continue in care and this
Court will continue to review the placement, progress and welfare of the child.
11.2. IT IS THEREFORE ORDERED that SUSAN DESKI, earlier appointed as
Attorney Ad Litem to represent the best interest of the child, is continued in this
relationship until further order of this Court or final disposition of this suit.
11.3. IT IS THEREFORE ORDERED that CASA FOR KIDS, earlier appointed as
Guardian Ad Litem to represent the best interest of the child, is continued in this
relationship until further order of this Court or final disposition of this suit.
12. Court Ordered Ad Litem for Parent
12.1. IT IS THEREFORE ORDERED that MICHAEL CASARETTO earlier
appointed to represent K 1 1'~\ ~" \·v~ is relieved of all duties based on a
finding of good cause. \
12.2. IT IS THEREFORE ORDERED that JOSH CLOVER earlier appointed to
represent D1C:""id is relieved of all duties based on a fmding of
good cause.
13. Dismissal of Other Court-Ordered Relationships
Except as otherwise provided in this order, any other existing court-ordered relationships
with the child the subject of this suit are hereby terminated and any parties claiming a
court-ordered relationship with the child are dismissed from this suit.
14. Child Support
Pursuant to§ 154.001, Texas Family Code, IT IS ORDERED that the parents shall pay
child support for the child as set forth in Attachment A to this Order, which is
incorporated herein as if set out verbatim in this paragraph.
15. Inheritance Rights
This Order shall not affect the right of any child to inherit from and through any party.
16. Denial of Other Relief
IT IS ORDERED that all relief requested in this case and not expressly granted is
denied.
Order of Tennination 7443
PageS ASAP2013
190
17. WARNING: APPEAL OF FINAL ORDER, PURSUANT TO § 263.405, TFC
A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN
APPEAL IN A SUIT IN WHICH TERMINATION OF THE PARENT-CHILD
RELATIONSHIP IS SOUGHT IS GOVERNED BY THE PROCEDURES FOR
ACCELERATED APPEALS IN CIVIL CASES UNDER THE TEXAS RULES OF
APPELLATE PROCEDURE. FAILURE TO FOLLOW THE TEXAS RULES OF
APPELLATE PROCEDURE FOR ACCELERATED APPEALS MAY RESULT IN
THE DISMISSAL OF THE APPEAL.
18. NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS:
YOU MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF
CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO
RELIES ON THE TERMS OF A COURT ORDER AND THE OFFICER'S
AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY
CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD
FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN
ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD
CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR
ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT
COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT
IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS
$10,000.
SIGNED this _ _ day - - - - - - ' 2014.
JUDGE PRESIDING
APPROVED AS TO FORM:
R~-
Attorney for Petitioner, Department of Family and Protective Services
100 E. Main, Ste. 200
Brenham, TX 77833
phone: (979) 277-6200
fax: (979) 277-6215
State Bar # 14624950
Onler of Tenninalion 7443
PageS ASAP 2013
191
SusanDeski
Attorney Ad Litem for the Child
P.O. Box 1798
Brenham, TX 77834
State Bar#
phone: (979) 830-1530
fax: (979) 830-1533
s
G i Ad Litem for the Child
2309 . Day St.
Brenham, TX 77833
phone: (979) 277-0088
fax: (979) 277-0092
(f/~L, J5:},
Michael Casaretto
Attorney for the Mother, K,
114 W. Alamo St., Ste. 26
Brenham, TX 77833
State Bar#
phone: (979) 836-2070
fax: (832) 431-3703
rom~A:t !;..~
Attorney for the Presumed Father, D c. c\
&..ly.
P.O. Box 2548
Brenham, TX 77834
State Bar#
phone: (979) 836-7733
fax:
Order ofTennination 7443
Page7 ASAP 2013
192
Attachment A
1. Child Support Obligation: K,
l.l. The Court finds that K 1 lul · has the ability to pay and is obligated to
support J JL TEXAS FAMILY CODE > TITLE 5. THE PARENT-CHILD RELATIONSHIP
AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP > SUBTITLE B. SUITS AFFECTING
THE PARENT-CHILD RELATIONSHIP > CHAPTER 161. TERMINATION OF THE PARENT-CHILD
RELATIONSHIP > SUBCHAPTER A. GROUNDS
§ 161.001. Involuntary Termination of Parent-Child Relationship
The court may order termination of the parent-child relationship if the court finds by clear and convincing
evidence:
(1) that the parent has:
(A) voluntarily left the child alone or in the possession of another not the parent and expressed an
intent not to return;
(B) voluntarily left the child alone or in the possession of another not the parent without expressing an
intent to return, without providing for the adequate support of the child, and remained away for a
period of at least three months;
(C) voluntarily left the child alone or in the possession of another without providing adequate support
of the child and remained away for a period of at least six months;
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child;
(E) 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;
(F) failed to support the child in accordance with the parent’s ability during a period of one year
ending within six months of the date of the filing of the petition;
(G) abandoned the child without identifying the child or furnishing means of identification, and the
child’s identity cannot be ascertained by the exercise of reasonable diligence;
(H) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at
a time during her pregnancy with the child and continuing through the birth, failed to provide
adequate support or medical care for the mother during the period of abandonment before the birth
of the child, and remained apart from the child or failed to support the child since the birth;
(I) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D,
Chapter 261;
(J) been the major cause of:
(i) the failure of the child to be enrolled in school as required by the Education Code; or
(ii) the child’s absence from the child’s home without the consent of the parents or guardian for a
substantial length of time or without the intent to return;
(K) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of
parental rights as provided by this chapter;
(L) been convicted or has been placed on community supervision, including deferred adjudication
community supervision, for being criminally responsible for the death or serious injury of a child
under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused
the death or serious injury of a child and that would constitute a violation of one of the following
Page 2 of 3
Tex. Fam. Code § 161.001
Penal Code sections:
(i) Section 19.02 (murder);
(ii) Section 19.03 (capital murder);
(iii) Section 19.04 (manslaughter);
(iv) Section 21.11 (indecency with a child);
(v) Section 22.01 (assault);
(vi) Section 22.011 (sexual assault);
(vii) Section 22.02 (aggravated assault);
(viii) Section 22.021 (aggravated sexual assault);
(ix) Section 22.04 (injury to a child, elderly individual, or disabled individual);
(x) Section 22.041 (abandoning or endangering child);
(xi) Section 25.02 (prohibited sexual conduct);
(xii) Section 43.25 (sexual performance by a child);
(xiii) Section 43.26 (possession or promotion of child pornography);
(xiv) Section 21.02 (continuous sexual abuse of young child or children);
(xv) Section 20A.02(a)(7) or (8)(trafficking of persons); and
(xvi) Section 43.05(a)(2)(compelling prostitution);
(M) had his or her parent-child relationship terminated with respect to another child based on a finding
that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent
provisions of the law of another state;
(N) constructively abandoned the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services or an authorized agency for
not less than six months, and:
(i) the department or authorized agency has made reasonable efforts to return the child to the
parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) failed to comply with the provisions of a court order that specifically established the actions
necessary for the parent to obtain the return of the child who has 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 child’s removal from the parent under Chapter 262 for the abuse or
neglect of the child;
(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that
endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment program; or
(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a
controlled substance;
(Q) knowingly engaged in criminal conduct that has resulted in the parent’s:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years
from the date of filing the petition;
Page 3 of 3
Tex. Fam. Code § 161.001
(R) been the cause of the child being born addicted to alcohol or a controlled substance, other than a
controlled substance legally obtained by prescription, as defined by Section 261.001;
(S) voluntarily delivered the child to a designated emergency infant care provider under Section
262.302 without expressing an intent to return for the child; or
(T) been convicted of:
(i) the murder of the other parent of the child under Section 19.02 or 19.03, Penal Code, or
under a law of another state, federal law, the law of a foreign country, or the Uniform Code
of Military Justice that contains elements that are substantially similar to the elements of an
offense under Section 19.02 or 19.03, Penal Code;
(ii) criminal attempt under Section 15.01, Penal Code, or under a law of another state, federal
law, the law of a foreign country, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an offense under Section 15.01, Penal
Code, to commit the offense described by Subparagraph (i); or
(iii) criminal solicitation under Section 15.03, Penal Code, or under a law of another state, federal
law, the law of a foreign country, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an offense under Section 15.03, Penal
Code, of the offense described by Subparagraph (i); and
(2) that termination is in the best interest of the child.
History
Enacted by Acts 1995, 74th Leg., ch. 20 (H.B. 655), § 1, effective April 20, 1995; am. Acts 1995, 74th Leg., ch. 709
(S.B. 338), § 1, effective September 1, 1995; am. Acts 1995, 74th Leg., ch. 751 (H.B. 433), § 65, effective September
1, 1995; am. Acts 1997, 75th Leg., ch. 575 (H.B. 1826), § 9, effective September 1, 1997; am. Acts 1997, 75th Leg., ch.
1022 (S.B. 359), § 60, effective September 1, 1997; am. Acts 1999, 76th Leg., ch. 1087 (H.B. 3423), § 1, effective
September 1, 1999; am. Acts 1999, 76th Leg., ch. 1390 (H.B. 1622), § 18, effective September 1, 1999; am. Acts 2001,
77th Leg., ch. 809 (H.B. 706), § 1, effective September 1, 2001; am. Acts 2005, 79th Leg., ch. 508 (H.B. 657), § 2,
effective September 1, 2005; am. Acts 2007, 80th Leg., ch. 593 (H.B. 8), § 3.30, effective September 1, 2007; am. Acts
2009, 81st Leg., ch. 86 (S.B. 1838), § 1, effective September 1, 2009; am. Acts 2011, 82nd Leg., ch. 1 (S.B. 24), §
4.02, effective September 1, 2011.
LexisNexis ® Texas Annotated Statutes
Copyright © 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.
APPENDIX 4
Page 1
LexisNexis (R) Texas Annotated Statutes
Copyright © 2014 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group
All rights reserved.
*** This document is current through the 2013 3rd Called Session ***
TEXAS FAMILY CODE
TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELA-
TIONSHIP
SUBTITLE E. PROTECTION OF THE CHILD
CHAPTER 262. PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY TO PROTECT HEALTH AND
SAFETY OF CHILD
SUBCHAPTER C. ADVERSARY HEARING
GO TO TEXAS CODE ARCHIVE DIRECTORY
Tex. Fam. Code § 262.201 (2014)
§ 262.201. Full Adversary Hearing; Findings of the Court
(a) Unless the child has already been returned to the parent, managing conservator, possessory conservator, guardian,
caretaker, or custodian entitled to possession and the temporary order, if any, has been dissolved, a full adversary hear-
ing shall be held not later than the 14th day after the date the child was taken into possession by the governmental enti-
ty, unless the court grants an extension under Subsection (a-3).
(a-1) Before commencement of the full adversary hearing, the court must inform each parent not represented by an
attorney of:
(1) the right to be represented by an attorney; and
(1) if a parent is indigent and appears in opposition to the suit, the right to a court-appointed attorney.
(a-2) If a parent claims indigence and requests the appointment of an attorney before the full adversary hearing, the
court shall require the parent to complete and file with the court an affidavit of indigence. The court may hear evidence
to determine whether the parent is indigent. If the court determines the parent is indigent, the court shall appoint an at-
torney to represent the parent.
(a-3) The court may, for good cause shown, postpone the full adversary hearing for not more than seven days from
the date of the attorney's appointment to provide the attorney time to respond to the petition and prepare for the hearing.
The court may shorten or lengthen the extension granted under this subsection if the parent and the appointed attorney
agree in writing. If the court postpones the full adversary hearing, the court shall extend a temporary restraining order
issued by the court for the protection of the child until the date of the rescheduled full adversary hearing.
(b) At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, man-
aging conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds
sufficient evidence to satisfy a person of ordinary prudence and caution that:
(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of
the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent
with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal;
and
(3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a con-
tinuing danger if the child is returned home.
Page 2
Tex. Fam. Code § 262.201
(c) If the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continu-
ing danger to the physical health or safety of the child and for the child to remain in the home is contrary to the welfare
of the child, the court shall issue an appropriate temporary order under Chapter 105. The court shall require each parent,
alleged father, or relative of the child before the court to complete the proposed child placement resources form provid-
ed under Section 261.307 and file the form with the court, if the form has not been previously filed with the court, and
provide the Department of Family and Protective Services with information necessary to locate any other absent parent,
alleged father, or relative of the child. The court shall inform each parent, alleged father, or relative of the child before
the court that the person's failure to submit the proposed child placement resources form will not delay any court pro-
ceedings relating to the child. The court shall inform each parent in open court that parental and custodial rights and
duties may be subject to restriction or to termination unless the parent or parents are willing and able to provide the
child with a safe environment. If the court finds that the child requires protection from family violence by a member of
the child's family or household, the court shall render a protective order under Title 4 for the child. In this subsection,
"family violence" has the meaning assigned by Section 71.004.
(d) In determining whether there is a continuing danger to the physical health or safety of the child, the court may
consider whether the household to which the child would be returned includes a person who:
(1) has abused or neglected another child in a manner that caused serious injury to or the death of the other child;
or
(2) has sexually abused another child.
(e) The court shall place a child removed from the child's custodial parent with the child's noncustodial parent or
with a relative of the child if placement with the noncustodial parent is inappropriate, unless placement with the non-
custodial parent or a relative is not in the best interest of the child.
(f) When citation by publication is needed for a parent or alleged or probable father in an action brought under this
chapter because the location of the parent, alleged father, or probable father is unknown, the court may render a tempo-
rary order without delay at any time after the filing of the action without regard to whether notice of the citation by pub-
lication has been published.
(g) For the purpose of determining under Subsection (a) the 14th day after the date the child is taken into posses-
sion, a child is considered to have been taken into possession by the department on the expiration of the five-day period
permitted under Section 262.007(c) or 262.110(b), as appropriate.
APPENDIX 5
Page 1
LexisNexis (R) Texas Annotated Statutes
Copyright © 2014 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group
All rights reserved.
*** This document is current through the 2013 3rd Called Session ***
TEXAS FAMILY CODE
TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELA-
TIONSHIP
SUBTITLE E. PROTECTION OF THE CHILD
CHAPTER 262. PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY TO PROTECT HEALTH AND
SAFETY OF CHILD
SUBCHAPTER C. ADVERSARY HEARING
GO TO TEXAS CODE ARCHIVE DIRECTORY
Tex. Fam. Code § 262.205 (2014)
§ 262.205. Hearing When Child Not in Possession of Governmental Entity
(a) In a suit requesting possession of a child after notice and hearing, the court may render a temporary restraining
order as provided by Section 105.001. The suit shall be promptly set for hearing.
(b) After the hearing, the court may grant the request to remove the child from the parent, managing conservator,
possessory conservator, guardian, caretaker, or custodian entitled to possession of the child if the court finds sufficient
evidence to satisfy a person of ordinary prudence and caution that:
(1) reasonable efforts have been made to prevent or eliminate the need to remove the child from the child's
home; and
(2) allowing the child to remain in the home would be contrary to the child's welfare.
(c) If the court orders removal of the child from the child's home, the court shall:
(1) issue an appropriate temporary order under Chapter 105; and
(2) inform each parent in open court that parental and custodial rights and duties may be subject to restriction or
termination unless the parent is willing and able to provide a safe environment for the child.
(d) If citation by publication is required for a parent or alleged or probable father in an action under this chapter
because the location of the person is unknown, the court may render a temporary order without regard to whether notice
of the citation has been published.
(e) Unless it is not in the best interest of the child, the court shall place a child who has been removed under this
section with:
(1) the child's noncustodial parent; or
(2) another relative of the child if placement with the noncustodial parent is inappropriate.
(f) If the court finds that the child requires protection from family violence by a member of the child's family or
household, the court shall render a protective order for the child under Title 4.
in the Interest of J. M., a Minor Child
Combined Opinion