IN THE INTEREST OF T.M. AND E.M., CHILDREN
Appeal from the 315th District Court Harris County, Texas
Trial Court Case No. 2014-03559J
consists of Chief Justice Radack and Justices Brown and
Russell Lloyd Justice.
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.
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. Theresa was subsequently released into the
care of her father, E.M.
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.
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
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.
trial began on November 30, 2015, and was recessed until
February 1, 2016, at the request of A.N.T.'s
counsel. 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.
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.
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.
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.
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.
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
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.
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. 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.
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.
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.
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.
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
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.
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
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.
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.
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 ...