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In re T.M.

Court of Appeals of Texas, First District

May 9, 2017


         On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2014-03559J

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.


          Russell Lloyd Justice.

         E.M. appeals from the trial court's judgment terminating his parental rights to his daughters, T.M. ("Theresa") and E.M. ("Emma"). In one issue, E.M. contends that the evidence is factually insufficient to support a finding that termination of his parental rights is in the children's best interest. We affirm.


         On April 18, 2014, the Department of Family and Protective Services received a referral alleging neglectful supervision of Theresa (three years old) and Emma (one year old) by their mother, A.N.T. The referral alleged that A.N.T. was charged with child endangerment after being stopped for driving 84 to 100 miles an hour with Theresa in the car. This incident led to her subsequent arrest for possession of cocaine.[1] Theresa was subsequently released into the care of her father, E.M.

         On June 24, 2014, the Department received another referral alleging neglectful supervision of Theresa and Emma, this time by E.M. and A.N.T. The intake report alleged that E.M. and A.N.T. were fighting because the Department had become involved and E.M. refused to take a drug test, E.M. had strangled A.N.T. in the apartment, and that A.N.T. had bruises on her back and legs. Theresa and Emma were in the apartment at the time of the altercation. According to the report, E.M., A.N.T., and the children got into E.M.'s vehicle and A.N.T. later jumped out and flagged down police. E.M. was subsequently arrested for possession of a controlled substance, cocaine, and for domestic violence. The report alleged that E.M.'s apartment was filthy with trash everywhere, Theresa and Emma slept on the floor because there was no furniture, E.M. was going to be evicted from the apartment, Emma had a diaper rash down to her thighs, Theresa's hair was knotted, and that the children needed to be bathed. The children were removed from E.M.'s care the same day.

         On June 25, 2014, the Department filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship, accompanied by the affidavit of Jerri Thomas, a Department caseworker. In its petition, the Department requested that it be named temporary managing conservator of Theresa and Emma. In her affidavit, Thomas cited the children's exposure to A.N.T.'s drug use and possession, E.M.'s drug possession while Theresa and Emma were in his care, and the parents' domestic violence in the presence of the children, in support of the Department's request that the children be removed and that it be named temporary managing conservator.

         On September 4, 2014, the Department created a family service plan for E.M. which required, among other things, that he complete a psychosocial evaluation and follow all recommendations; successfully complete domestic violence classes; maintain contact with the Department caseworker at least once a month; maintain stable and safe housing for a minimum of six months consecutively and provide the caseworker with a current lease and utility bills; provide the caseworker with all sources of income by the 15th of each month or, if not employed, proof of his registration with WorkSource and a list of at least three employers to whom he has submitted an application; refrain from engaging in any criminal activities; complete a drug/alcohol assessment and follow all recommendations; participate in drug/alcohol testing and show progress by testing negative for drugs and alcohol; and successfully complete parenting classes.

         The trial began on November 30, 2015, and was recessed until February 1, 2016, at the request of A.N.T.'s counsel.[2] When trial resumed, Deputy L. Lizcano with the Harris County Constable's Office testified that her sergeant was flagged down in response to a disturbance involving A.N.T. and E.M. in June 2014. When Deputy Lizcano arrived at the scene, A.N.T. told her that she and E.M. had had an argument in his car and that she had jumped out. Deputy Lizcano testified that A.N.T. had bruises on her back, neck, and legs. A.N.T. told her that E.M. had hit and choked her during an argument that morning and that he had beaten her a few days earlier. Deputy Lizcano then accompanied A.N.T. back to her apartment to look for the children. Deputy Lizcano described the apartment as dirty with trash everywhere, and furnished only with a blow-up mattress on the floor. A.N.T. told Deputy Lizcano that she was not supposed to be around her children because she had been arrested for having a suitcase full of drugs that belonged to E.M. while one of her children was with her, and that the children had been removed from her care. A.N.T. also told Deputy Lizcano that E.M. was a drug dealer, that he kept the drugs in his truck, and that she had been with him on several drug deals.

         Deputy Lizcano was then dispatched to a nearby car wash gas station where she found E.M., Theresa, and Emma. Deputy Lizcano testified that the two little girls "looked bad": the toddler's hair was badly matted, and the infant was wearing a dirty diaper and had a severe diaper rash down her thighs. Deputy Lizcano testified that A.N.T. changed the infant's diaper and that E.M. had ointment in the car for Emma's rash. Deputy Lizcano testified that E.M. was subsequently taken into custody and that the Department picked up the children.

         After a recess, trial resumed on October 7, 2016. Prior to calling its first witness, the Department introduced numerous exhibits, which the trial court admitted, including the following: E.M.'s conviction for possession of a controlled substance, for which he was sentenced to seventy days' incarceration; E.M.'s plea of guilty to misdemeanor theft, for which he received deferred adjudication; E.M.'s October 15, 2014 drug test, with positive results for cocaine and marijuana; E.M.'s February 4, 2015 drug test, with positive results for cocaine; E.M.'s August 24, 2015 drug test, with positive results for cocaine and marijuana; E.M.'s November 30, 2015 drug test, with positive results for amphetamine, methamphetamine, cocaine, and marijuana; E.M.'s February 8, 2016 drug test, with positive results for cocaine and marijuana; E.M.'s March 3, 2016 drug test, with positive results for cocaine; and E.M.'s May 20, 2016 drug test, with positive results for cocaine.

         Sergeant L. Gonzales with the Harris County Constable's Office testified that, on June 24, 2014, A.N.T. flagged him down and told him that she had been assaulted by her husband, E.M. Sergeant Gonzales testified that A.N.T's neck was red and that she had bruising on her back and legs. Sergeant Gonzales accompanied A.N.T. to her apartment which he described as "pretty filthy, " with trash in the rooms, and no furniture except a blow-up mattress in the living room. Sergeant Gonzales subsequently located E.M., Theresa, and Emma and conducted a pat down search of E.M. which uncovered thirty-seven light blue pills in E.M.'s right front pocket. E.M. told the sergeant that they were his wife's pills and that he was holding them for her. Sergeant Gonzales then searched E.M.'s vehicle where he discovered a bag with several grams of cocaine and brass knuckles. According to Sergeant Gonzales, there were no car seats in E.M.'s vehicle. Sergeant Gonzales stated that A.N.T. denied that the blue pills found on E.M. were hers, and that E.M. denied assaulting A.N.T. and instead claimed that she was gone for a couple of days and had the bruises when she returned home. E.M. was arrested for possession of a controlled substance.

         E.M. testified that the Department first became involved with his children when A.N.T. got arrested for drug possession in April 2014. E.M. suspected A.N.T. had a drug problem because she lost a significant amount of weight quickly. He testified that he was not using or selling drugs at that time.

         E.M. testified that, at the time of his arrest, he was in the process of moving to another apartment and had left his job as a draftsman to get an oil field job in the country because he was having issues in the city. He testified that he was storing the children's furniture at his sister's house until he moved. E.M. testified that there were car seats in his vehicle at the time of his arrest. E.M. stated that the Department took custody of the children the day he was arrested and that he was sentenced to seventy-four days' confinement.[3]

         When asked about his positive drug tests following his release from jail, E.M. testified that he had a drug test done somewhere else and that it came back clean. With regard to his service plan, E.M. testified that he completed parenting classes and a substance abuse assessment. He also completed a battering intervention program but had to attend a second program after he was discharged from the first one due to his failure to show up. E.M. denied engaging in domestic violence with A.N.T. He also denied using drugs and explained that his positive tests results could have been the result of getting a "contact high" from being around other people with drugs. He stated that he was around people dealing drugs in 2015 but that he is not often around them anymore.

         In addition to Theresa, Emma, and his infant son, K.M., E.M. has four other children ranging in age from twelve to seventeen years old who live with their mother.[4] E.M. acknowledged that he has not paid any child support, or provided diapers or clothes, for Theresa and Emma since they have been in the custody of the Department, but he questioned whether anyone had asked him to pay child support. E.M. testified that he has refrained from engaging in criminal activity as required by his service plan despite being charged with theft in August 2016. According to E.M., he could have gotten the charge dismissed but instead accepted deferred adjudication because he did not have time to deal with going back and forth to the courthouse.

         E.M. testified that, upon his release from jail in 2014, it took him approximately six months to find a job. He worked as a dishwasher at Pei Wei for eight months and then at a golf course for approximately two months when he was arrested for theft. At the time of trial, E.M. had been working for a printing service company for approximately three weeks. E.M. stated that he has had four jobs and lived in three different places over the course of the case.

         E.M. testified that, when A.N.T. was arrested in April 2014, the Department approached him about taking Theresa and Emma. According to E.M., the Department conducted two home visits and that the caseworker did not have any concerns about his ability to take care of the children. E.M. testified that the girls were in great condition when they lived with him, they were developmentally on target, and they had no special needs. E.M. testified that A.N.T. visited the girls after she was released from jail in April 2014, but that he never left her alone with the girls because that was one of the conditions under which the Department released the children into his care.

         E.M. testified that, on the day he was arrested in June 2014, A.N.T. had come over to his apartment at about 6:30 a.m. At 8:00 a.m., Thomas, the Department caseworker, called to tell him that A.N.T. had made an allegation to the Department that E.M. was using drugs and that he needed to take a drug test. A.N.T. told E.M. that she wanted to watch the children instead of E.M. dropping them off with the babysitter on his way to work. E.M. testified that when he refused, A.N.T. became upset and would not leave the apartment. According to E.M., he picked her up and put her outside the apartment but did not harm her. E.M. stated that, after Thomas's call, he had a bad feeling that morning and thought A.N.T. was going to set him up.

         E.M. testified that he left the apartment with A.N.T. and the girls and intended to drop A.N.T. at her friend's house. When they were two blocks away from the apartment, A.N.T. became upset and jumped out of the car. E.M. then took the girls to the nearby washateria so he could do some wash. While he waited on the laundry, he took Theresa and Emma outside where they played in the dirt. He testified that he bought some candy for the girls at the corner store, and that Emma got the candy on her clothes and Theresa's hands became sticky from the candy. According to E.M., Theresa has a habit of twirling her hair which causes knotting. He testified that the matting in Theresa's hair was due to her twirling her hair the previous night and her sticky fingers.

         E.M. stated that he found a bag of pills underneath the passenger seat where A.N.T. had been sitting before jumping out of the car. When the police arrived at the washateria thirty minutes later, they discovered the pills on him. According to E.M., after the police searched his vehicle and were unable to find anything, A.N.T. got in the car and pulled something out and gave it to an officer. E.M. stated that, as a result of his drug conviction, he lost his job and his apartment and his vehicle was impounded.

         E.M. stayed with his cousin for a month and then lived on the streets for a while during which time his younger brother gave him money. E.M. testified that his cousin gave him money as well, that he visited his cousin's house twenty or thirty times during the pendency of the case (the last visit was in January 2016), and that he saw people there using cocaine. He testified that his cousin was later arrested for drugs.

         E.M. initially testified that he had not used any drug during the pendency of the case. He later stated that, other than smoking marijuana on November 26, 2015, he has not used any drugs. E.M. acknowledged that he told the trial court during a November 2015 hearing that he had been using cocaine, but only because his attorney advised him to admit it.

         At the time of trial, E.M. had been living in his apartment since February 2016. E.M. admitted that the lease has his friend Gabriel Castada's name on it, and that the leasing office did it so that E.M. would be able to lease the apartment. E.M. stated that when the children's guardian ad litem visited him in April 2016, he owned two vehicles. He testified that he bought the second vehicle because the first one began to have problems and he needed to be able to drive to work. When asked why he bought a second vehicle when he claimed not to have any money to pay child support or provide anything for the children, E.M. responded that nobody ever asked him to support the children.

         E.M. testified that he had no reason to believe that A.N.T. was using drugs before her arrest in April 2014. According to E.M., A.N.T. did not appear unstable or unreliable while caring for Theresa and Emma. He further testified that A.N.T. had previously taken the girls out by herself so he ...

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