                                                                                  ACCEPTED
                                                                             04-14-00744-CV
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                        2/26/2015 4:27:51 PM
                                                                               KEITH HOTTLE
                                                                                      CLERK

                     No. 04-14-00744-CV

                                                             FILED IN
                             In the                   4th COURT OF APPEALS
                                                       SAN ANTONIO, TEXAS
 Fourth Court of Appeals District of Texas            02/26/2015 4:27:51 PM
                                                          KEITH E. HOTTLE
                      San Antonio, Texas                       Clerk


                        In the interest of
                          B.C., ET AL.,
                         minor children.

                            PAUL C.,
                            Appellant
    TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
                         Appellee


         On appeal from the 131st Judicial District Court
                      Bexar County Texas
               Trial Cause No. 2013-PA-01143


       BRIEF FOR THE TEXAS DEPARTMENT OF
        FAMILY AND PROTECTIVE SERVICES


                                NICHOLAS “NICO” LAHOOD
                                Criminal District Attorney
                                NATHAN E. MOREY
                                Assistant Criminal District Attorney
                                State Bar No. 24074756
                                Criminal District Attorney’s Office
Oral Argument Waived            Bexar County, Texas
                                101 West Nueva Street, Suite 370
                                San Antonio, Texas 78205
                                Voice: (210) 335-2414
                                Fax: (210) 335-2436
                                Email: nathan.morey@bexar.org
                                Attorneys for the TDFPS
                     In re B.C., No. 04-14-00744-CV – TDFPS Brief



                      IDENTITIES OF PARTIES AND COUNSEL

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State

supplements the following individual(s) to the list of parties and counsel:

      Nathan E. Morey
        Assistant Criminal District Attorney
        and Counsel on Appeal for the TDFPS
        State Bar No. 24074756
        Criminal District Attorney’s Office
        Bexar County, Texas
        101 West Nueva, Suite 370
        San Antonio, Texas 78205
        Voice: (210) 335-2414
        Fax: (210) 335-2436
        Email: nathan.morey@bexar.org




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                                            TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ....................................................................... ii

TABLE OF CONTENTS ................................................................................................ iii

INDEX OF AUTHORITIES...............................................................................................v

STATEMENT OF THE CASE ...........................................................................................1

ISSUES PRESENTED ......................................................................................................2

STATEMENT OF FACTS.................................................................................................3

SUMMARY OF THE ARGUMENT ....................................................................................5
   First Point of Error:                  The evidence is legally and factually
                                          insufficient to support the trial court’s order
                                          terminating parental rights pursuant to
                                          subsections 161.001(1)(B) and (C). ...........................5
   State’s Response:                      The evidence was legally and factually
                                          sufficient because the trial court could draw a
                                          reasonable inference that Appellant voluntarily
                                          abandoned the children based on the shear
                                          amount of time Appellant was out of the
                                          picture. Furthermore, the law does not require
                                          Appellant to affirmatively express an intent
                                          not to return; the absence of an expression is
                                          sufficient by itself according to the statute. ...............5
   Second Point of Error:                 The evidence is legally and factually
                                          insufficient to support the trial court’s order
                                          terminating parental rights pursuant to
                                          subsection 161.001(1)(O). .........................................5
   State’s Response:                      The evidence was legally and factually
                                          sufficient because the children were removed
                                          from both the parents pursuant to Chapter 262
                                          on May 22, 2013. Additionally, the only
                                          reason Mary had possession of the children
                                          when they were physically seized was because
                                          Raquel had subjected them to neglect some
                                          years earlier. ...............................................................5

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ARGUMENT .................................................................................................................6
   Standard of Review ............................................................................................6
   Applicable Law: Family Code, subsections 161.001(1)(B), (C), & (O)............6
   Application of the Law to the Present Record ...................................................7

PRAYER .....................................................................................................................11

CERTIFICATE OF SERVICE ..........................................................................................12

CERTIFICATE OF COMPLIANCE ..................................................................................12




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                                        INDEX OF AUTHORITIES

Statutes:
  TEX. FAM. CODE § 161.001(1)(B) ................................................................. 1, 6, 8
  TEX. FAM. CODE § 161.001(1)(C) ......................................................................1, 7
  TEX. FAM. CODE § 161.001(1)(O)................................................................. 1, 7, 9
  TEX. FAM. CODE § 161.001(2) ...............................................................................1
  TEX. FAM. CODE § 161.206(a) ...............................................................................6
  TEX. FAM. CODE § 262.104 ..............................................................................3, 10
  TEX. FAM. CODE § 262.201 ..................................................................................10
  TEX. FAM. CODE § 262.205 ..................................................................................10

Cases:
  In re C.H.,
     89 S.W.3d 17 (Tex. 2002) .................................................................................6
  In re D.R.J.,
     395 S.W.3d 316 (Tex. App.—Fort Worth 2013, no pet.) ...............................11
  In re J.F.C.,
     96 S.W.3d 256 (Tex. 2002) ...........................................................................6, 8
  In re R.M.,
     180 S.W.3d 874 (Tex. App.—Texarkana 2005, no pet.) ..............................7, 8

Rules:
  TEX. R. APP. P. 9.4(i)(2)(B)...............................................................................12
  TEX. R. APP. P. 9.4(i)(3) ......................................................................................12
  TEX. R. APP. P. 9.5(b) ........................................................................................12
  TEX. R. APP. P. 26.1(b)...........................................................................................1
  TEX. R. APP. P. 38.2(a)(1)(A) ............................................................................... ii




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                      In re B.C., No. 04-14-00744-CV – TDFPS Brief



TO THE HONORABLE FOURTH COURT OF APPEALS:

      Now comes the Texas Department of Family and Protective Services,

hereinafter referred to as “Department,” by and through Nicholas “Nico” LaHood,

criminal district attorney of Bexar County, Texas, and the undersigned assistant

criminal district attorney, with the filing of the following brief:


                              STATEMENT OF THE CASE

      The trial court signed and entered an order terminating the parental rights of

Paul C., hereinafter referred to as Appellant (C.R. at 268–76). The trial court

found that termination was in the children’s best interest and that Appellant had

voluntarily left the in the possession of another without expressing an intent to

return and without providing for the adequate support of the child, and that

Appellant had failed to complete her court ordered service plan (C.R. at 271–73).

See TEX. FAM. CODE §§ 161.001(1)(B), (C) & (O); id. at § 161.001(2). Appellant

timely filed a notice of appeal (C.R. at 283). See TEX. R. APP. P. 26.1(b).




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                                ISSUES PRESENTED

First Issue:    Is the evidence legally and factually sufficient to support
                termination pursuant to Texas Family Code section 161.001(1)(B)
                or (C)?

Second Issue: Is the evidence legally or factually sufficient to support termination
              pursuant to Texas Family Code section 161.001(1)(O)?




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                                STATEMENT OF FACTS

       According to the affidavit that accompanied the original petition,

Appellant’s wife, Raquel C., left B.C., P.C., and A.C. alone for several hours in

September 2008 (C.R. at 15).1 The children were placed with their maternal aunt,

Mary Paredez and her boyfriend, Enrique Villanueva (C.R. at 16). Mary was

appointed managing conservator of the three children in November 2009 (C.R. at

16). In May 2013, the Department responded to Mary’s and Enrique’s home

because allegedly B.C. had been sexually abused by Mary’s biological son (C.R. at

14–15, 16–17). According to the allegations, Mary and Enrique were forcing B.C.

to dig a hole in the back yard because they blamed her for prompting their son to

commit suicide (C.R. at 14). B.C. was immediately removed by a Department

caseworker (C.R. at 22). See TEX. FAM. CODE § 262.104. The Department filed a

petition to terminate parental rights and the remaining children were removed

(C.R. at 1–13, 43–53).

       After a hearing, the trial court entered temporary orders against both parents

and Mary (C.R. at 43). The order named Appellant as temporary possessory

conservator subject to court limitations (C.R. at 45–46). The Department was

named as temporary managing conservator (C.R. at 45). Mary, Enrique, Raquel,



1
        According to an unsworn CASA report, Appellant was incarcerated for impersonating a
police officer when the children were initially removed from Raquel in 2008 (C.R. at 150).

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                     In re B.C., No. 04-14-00744-CV – TDFPS Brief



and Appellant were all subsequently assigned family service plans (C.R. at 47, 75

[Mary & Enrique], 93 [Raquel], 117 [Appellant]).

      Appellant did not attend the termination trial (R.R. at 4). During trial, the

Department’s caseworker testified that Appellant and Raquel had very little contact

with the children from the initial removal in 2008 through the commencement of

the present case in 2013 (R.R. at 9, 21). The parents did not take advantage of

court ordered visitation or provide any support for the children (R.R. at 9).

Appellant told his caseworker that he did not visit the kids (R.R. at 23). Neither

parent completed the court-ordered family service plan, although Appellant did

complete his parenting class and initiated his therapy sessions (R.R. at 10, 38).

According to the caseworker, Appellant has not expressed an intent to return to his

children (R.R. at 37). The caseworker believes that all three kids would like

Appellant’s rights terminated (R.R. at 13, 19).

      Enrique testified that he and Mary would like to adopt P.C. and A.C. (C.R.

at 42). Enrique said that Appellant has tried to contact the kids, but without

“proper authorization” by the court (C.R. at 42). A.C. and P.C. would like to be

adopted by Mary and Enrique and would like to have their last name changed to

Villanueva (C.R. at 42).




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                         SUMMARY OF THE ARGUMENT

First Point of Error:    The evidence is legally and factually insufficient to
                         support the trial court’s order terminating parental rights
                         pursuant to subsections 161.001(1)(B) and (C).

State’s Response:        The evidence was legally and factually sufficient because
                         the trial court could draw a reasonable inference that
                         Appellant voluntarily abandoned the children based on
                         the shear amount of time Appellant was out of the
                         picture. Furthermore, the law does not require Appellant
                         to affirmatively express an intent not to return; the
                         absence of an expression is sufficient by itself according
                         to the statute.



Second Point of Error: The evidence is legally and factually insufficient to
                       support the trial court’s order terminating parental rights
                       pursuant to subsection 161.001(1)(O).

State’s Response:        The evidence was legally and factually sufficient because
                         the children were removed from both the parents
                         pursuant to Chapter 262 on May 22, 2013. Additionally,
                         the only reason Mary had possession of the children
                         when they were physically seized was because Raquel
                         had subjected them to neglect some years earlier.




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                     In re B.C., No. 04-14-00744-CV – TDFPS Brief



                                     ARGUMENT

   Standard of Review
      An order terminating parental rights must be supported by clear and

convincing evidence. TEX. FAM. CODE § 161.206(a). Evidence is legally and

factually sufficient on appeal if “a factfinder could reasonably form a firm belief or

conviction about the truth of the matter on which the State bears the burden of

proof.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17,

25 (Tex. 2002). A legal sufficiency review requires the appellate court to review

the evidence in a light most favorable to the trial court’s order giving appropriate

deference to the factfinder’s conclusions. J.F.C., 96 S.W.3d at 266. Factual

sufficiency review requires the appellate court to consider whether “disputed

evidence is such that a factfinder could reasonably form a firm belief or conviction

about the truth of the State’s allegations.” Id. (citing C.H., 89 S.W.3d at 25).


   Applicable Law: Family Code, subsections 161.001(1)(B), (C), & (O)
      “The court may order termination of the parent-child relationship if the court

finds by clear and convincing evidence: (1) that the parent has: (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.”               TEX. FAM. CODE §

161.001(1)(B). Similarly, “[t]he court may order termination of the parent-child


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                     In re B.C., No. 04-14-00744-CV – TDFPS Brief



relationship if the court finds by clear and convincing evidence: (1) that the parent

has: (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.” Id. at § 161.001(1)(C).

      A court may also order termination if “the parent has: (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.”

Id. at § 161.001(1)(O).


   Application of the Law to the Present Record
      The evidence is legally and factually sufficient to support
      termination under subsections 161.001(1)(B) and (C).
      Appellant does not dispute that Appellant voluntarily left the children in the

possession of another (Appellant’s Brief at 8). Instead, Appellant argues that the

evidence is insufficient because the record fails to show that Appellant “made an

affirmative expression of his intent not to return” (Appellant’s Brief at 9). For this

proposition, Appellant relies on In re R.M., 180 S.W.3d 874 (Tex. App.—

Texarkana 2005, no pet.). R.M. does not support this proposition. To the contrary,



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the Texarkana Court of Appeals found that the Department failed to prove the

parent’s failure to provide adequate support because the parent consented to a

custodial arrangement where the children were adequately cared for. Id. at 877–

78.   The clear statutory terms of subsection 161.001(1)(B) indicate that an

affirmative expression is not required because the statute states: “… without

expressing an intent to return.” TEX. FAM. CODE § 161.001(1)(B). The present

record shows that Appellant did not express an intent to return (R.R. at 38).

      Appellant also argues that the evidence is insufficient because Appellant did

not need to personally support the children; he only needed to make, or consent to,

adequate arrangements for support (Appellant’s Brief at 9–10). Here, the record

does not show that Appellant facilitated or consented to any arrangement

whatsoever between him and Mary and Enrique. The record shows that Appellant

simply left—for quite a long time. Accordingly, the trial court’s findings pursuant

to subsections 161.001(1)(B) and 161.001(1)(C) should be affirmed. See J.F.C.,

96 S.W.3d at 266 (“In a factual sufficiency review, as we explained in In re C.H., a

court of appeals must give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing.”).


      The evidence is legally and factually sufficient to support
      termination under subsection 161.001(1)(O).




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      In this ground, Appellant argues that the evidence is legally insufficient

because the children were not physically seized from either his or Raquel’s custody

in May 2013 and that neither parent was directly responsible for the abuse or

neglect (Appellant’s Brief at 12–13).      A reading of subsection 161.001(1)(O)

indicates that neither of these scenarios are required. The elements of subsection

161.001(1)(O) can be broken down as follows: “[1] fail[ure] 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 [2] who has been in the permanent or

temporary managing conservatorship of the Department of Family and Protective

Services [3] for not less than nine months [4] as a result of the child’s removal

from the parent under Chapter 262 [5] for the abuse or neglect of the child.” TEX.

FAM. CODE § 161.001(1)(O) (alterations added). Appellant does not dispute that

the Department satisfied the first, second, third, or fifth element; he disputes that

the children were not removed from a parent under Chapter 262.

      In the present case, all the children were removed from both parents on May

22, 2013 when the trial court signed an order pursuant to section 262.205 (C.R. at

43). It is true that B.C. was “removed” from Mary’s actual custody pursuant to

section 262.104, as stated by the trial court’s May 10, 2013 order (C.R. at 27).

However, a reading of subsection 161.001(1)(O) indicates that it is triggered by

any removal under Chapter 262. See id. at § 161.001(1)(O) (“… as a result of the


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                        In re B.C., No. 04-14-00744-CV – TDFPS Brief



child’s removal from the parent under Chapter 262 for the abuse or neglect of the

child.” (emphasis added)). The Department’s actions of taking possession of B.C.

from Mary qualified as a “removal under Chapter 262”—specifically, section

262.104. See id. at 262.104(a) (“… an authorized representative of the Department

of Family and Protective Services, a law enforcement officer, or a juvenile

probation officer may take possession of a child without a court order under the

following conditions …”). Likewise, the trial court’s May 22, 2013 order was a

“removal under Chapter 262”—specifically, section 262.205—because it deprived

both parents of possessory rights to all three children (C.R. at 43–53). See id. at §

262.205(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 …”).2

       Furthermore, the record indicates—and Appellant does not dispute this on

appeal—that the children were only with Mary because of Raquel’s neglect some

years earlier (R.R. at 21; C.R. at 15–16). In any event, the plain language of

subsection 161.001(1)(O) does not limit the term “removal” to any particular

section or subchapter within Chapter 262. Because Appellant’s possessory rights

2
        It appears from the record that B.C. was removed on May 8, 2013 pursuant to section
262.104. The Department’s initial affidavit states that “an exigent removal was performed”
(C.R. at 15). The amended affidavit indicates that P.C. and A.C. were left with Mary (C.R. at
22). Accordingly, the hearing on May 22, 2013 appears to have been conducted pursuant to
section 262.201 as to B.C., and pursuant to section 262.205 as to P.C. and A.C. (C.R. at 29, 43).
Whether the trial court removes the children under section 262.201 or section 262.205 is
inconsequential to a determination under subsection 262.001(1)(O).

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were limited by court order pursuant to Chapter 262, the children were “removed”

from him under the law and the trial court’s finding under subsection

161.001(1)(O) should be affirmed. See, e.g., In re D.R.J., 395 S.W.3d 316, 319–20

(Tex. App.—Fort Worth 2013, no pet.) (finding sufficient evidence to support a

finding that D.R.J. was properly removed from grandmother’s house due to abuse

by mother’s sibling).

                                         PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee Department prays

the Court overrule Appellant’s points of error and affirm the trial court’s Order of

Termination.

                                              Respectfully submitted,

                                              NICHOLAS “NICO” LAHOOD
                                              Criminal District Attorney
                                              Bexar County, Texas

                                                          /s/ Nathan E. Morey
                                              NATHAN E. MOREY
                                              Assistant Criminal District Attorney
                                              State Bar No. 24074756
                                              101 West Nueva Street, Suite 370
                                              San Antonio, Texas 78205
                                              Voice: (210) 335-2414
                                              Fax: (210) 335-2436
                                              Email: nathan.morey@bexar.org
                                              Attorneys for the State of Texas




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                    In re B.C., No. 04-14-00744-CV – TDFPS Brief



                            CERTIFICATE OF SERVICE

      I, Nathan E. Morey, hereby certify that, pursuant to Texas Rule of Appellate

Procedure 9.5(b), a true and correct copy of the above and forgoing brief was

emailed to James Peplinski on Thursday, February 26, 2016.


                         CERTIFICATE OF COMPLIANCE

      I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate

Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above response contains 2,928 words

according to the “word count” feature of Microsoft Office.

                                                      /s/ Nathan E. Morey
                                          NATHAN E. MOREY
                                          Assistant Criminal District Attorney
                                          State Bar No. 24074756
                                          101 West Nueva, Suite 370
                                          San Antonio, Texas 78205
                                          Voice: (210) 335-2414
                                          Fax: (210) 335-2436
                                          Email: nathan.morey@bexar.org
                                          Attorney for the State of Texas

cc: JAMES B. PEPLINSKI
    Attorney at Law
    State Bar No. 24010294
    15751 Knollbranch
    San Antonio, Texas 78247
    Voice: (210) 416-1129
    Fax: (210) 829-5432
    Email: jpeplinski@satx.rr.com
    Attorney for Appellant




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