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In re E.M.H.

Court of Appeals of Texas, Eleventh District

March 3, 2017


         On Appeal from the 318th District Court Midland County, Texas Trial Court Cause No. FM 58, 902

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.



         This is an appeal from an order of termination of the parental rights of the mother and father of E.M.H. The father appeals. On appeal, the father presents thirteen issues for our review; he challenges the effectiveness of his trial counsel and the legal and factual sufficiency of the evidence. We affirm.

         I. Termination Findings and Standards

         After the mother voluntarily relinquished her parental rights, a jury trial was conducted with respect to the father's parental rights. The jury found that the parent-child relationship between the father and E.M.H. should be terminated. Based on the mother's earlier relinquishment and on the jury's verdict with respect to the father, the trial court entered a final order in which it terminated the parents' rights to the child. In the order, the trial court found that the father had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the physical or emotional well-being of the child; had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being; had constructively abandoned the child; had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child, who had been in the 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 for abuse or neglect; or had a mental or emotional illness or a mental deficiency that rendered him unable to provide for the physical, emotional, and mental needs of the child until the child's eighteenth birthday despite the Department's reasonable efforts to return the child to the parent. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (N), (O), 161.003 (West Supp. 2016). The trial court also found that termination of the father's parental rights would be in the best interest of the child. See id. §§ 161.001(b)(2), 161.003.

         The termination of parental rights must be supported by clear and convincing evidence. Fam. § 161.001(b), § 161.206 (West 2014). To terminate parental rights under Section 161.001(b), it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(T) and that termination is in the best interest of the child. Id.

         To determine on appeal if the evidence is legally sufficient to support a finding in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).

         With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.-Eastland 2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (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 parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.

         II. Evidence at Trial

         The evidence at the final hearing showed that E.M.H. was two years old at the time she was removed from her parents' care in 2015. The Department had initially become involved with the family in 2013 when the Department received an intake based upon domestic violence committed by the father against the mother in the presence of E.M.H. The Department received another report that involved similar, but escalated, allegations in 2014. In 2015, the Department received yet another intake involving E.M.H. This time, the mother had left the child outside in a stroller in a trailer park from 5:00 a.m. to 9:00 a.m. while the mother and her boyfriend fought and used drugs. The Department removed the child based upon the unsanitary condition of the residence and the mother's use of methamphetamine while the child was in her care. The results of a drug test revealed high levels of methamphetamine in the mother's system. The father, who had fled to California after the 2014 incident, could not be located by the Department at the time of removal but was subsequently contacted through Facebook.

         The father refused to cooperate with the Department. Evidence was offered at trial to show that the father had a long and extensive involvement with different mental health providers. He has years of mental health history and noncompliance with his mental health treatment. He also has a history of drug abuse and "horrific" domestic violence. Throughout the case, the father had shown no ability to care for his child. He did not even visit E.M.H. a single time during the fifteen months that this case was pending. The father informed the Department and testified at trial that the last time he saw his child was in March 2014, which is when he fled to California to avoid criminal charges.

         When E.M.H. was removed from her parents' care, she was placed in the home of her maternal grandparents. E.M.H. continued to reside there at the time of the final hearing on termination. E.M.H. does not talk about her father and has no relationship with him. She has done well in the home of her maternal grandparents, which is a safe and stable home, and they are tending to her special needs. The maternal grandparents wish to adopt E.M.H., and that is the Department's goal for her if the parents' rights are terminated. The father told the Department's investigator that the best place for E.M.H. was with her maternal grandparents. Although the father testified extensively at trial and indicated that he did not want his parental rights to be terminated, evidence was offered at trial to show that termination of his rights would be in the best interest of E.M.H.

         III. Fathe ...

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