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In re B.M.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 30, 2017

IN THE INTEREST OF B.M., J.M., D.M., AND L.M., CHILDREN

         On appeal from the 156th District Court of Bee County, Texas.

          Before Justices Rodriguez, Benavides, and Longoria

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE.

         By three issues, appellant D.M. (Mother)[1] challenges the termination of her parental rights to B.M. (Child 1), J.M. (Child 2), D.M. (Child 3), and L.M. (Child 4). Mother alleges: (1) she was denied due process when the attorney ad litem did not advocate according to Child 3 and Child 4's wishes; (2) the trial court abused its discretion by denying her request for an extension; and (3) the evidence was legally and factually insufficient to support a best interest finding regarding termination. We affirm.

         I. Background

         In August 2016, the Texas Department of Family and Protective Services (the Department) filed its original petition for protection, conservatorship, and for termination of Mother's parental rights over her four children.[2] The petition was in response to Mother's arrest for possession of methamphetamine, following a high speed chase from police involving Mother's boyfriend J.H. (Boyfriend), Mother, and Child 3 and Child 4 in the vehicle.

         After interviewing the children, the Department had concerns regarding Mother's drug use, the instability of the children's living environment, domestic violence between Mother and Boyfriend, and the high speed chase with police. The trial court removed the children from Mother's care, Child 1 and Child 2 were placed with their maternal grandmother, D.G. (Maternal Grandmother), while Child 3 and Child 4 were placed in foster care.

         The Department moved forward with termination proceedings and a bench trial commenced on August 8, 2017. At the outset of the trial, Mother requested an extension of the proceedings in order for Child 1 to age out of the system[3], and for Mother to have more time to comply with the Department's service plan. The trial court carried the motion through trial.

         Marilyn Anderson, an investigator with the Department, testified that she initially received a neglectful supervision referral in May of 2016 regarding Child 3. She was unable to locate the family, but finally made contact with Child 1 and Child 2 at their respective schools. Anderson found out Child 1 and Child 2 were living with friends, instead of Mother. According to Anderson, Child 1 spoke of how she acted like a mother to the younger children and Mother's methamphetamine use. Child 2 talked about the violence in the home between Mother and Boyfriend and that he was fearful of Boyfriend. When Anderson finally made contact with Mother, Mother was renewing her food stamps and was "irate" upon contact. Anderson stated that she believed Mother was on some type of drug when they interacted and refused to take a drug test at Anderson's request. Anderson also testified that Mother had a history with the Department since 2008, and a majority of the cases had "reason to believe" as their disposition, indicating that the Department found the allegations to be credible.

         Christine Rodriguez, a conservatorship worker with the Department, testified that she was in charge of monitoring Mother's family service plan. Rodriguez stated the Department's biggest concerns with Mother dealt with her drug use, trouble maintaining employment, and unstable housing. Rodriguez told the court that Mother had only complied with three of the fourteen drug tests requested by the Department. One of the tests was negative for drugs, but the most recent ones were positive for the presence of drugs. Rodriguez testified that the Department had concerns that Boyfriend had been present during some of the visits between Mother and the children. Additionally, Rodriguez notified the trial court that Child 1 and Child 2 could stay with Maternal Grandmother, and Child 3 and Child 4 were doing well in foster care. Rodriguez stated that even though Mother had complied previously with the Department during a prior removal and return of the children, she did not believe that Mother demonstrated an ability to change and comply with the Department requirements. Rodriguez believed that Mother had endangered the physical and emotional well-being of the children and that termination of her rights would be in the children's best interests.

         The Court Appointed Special Advocate (CASA) volunteer Ann Showalter testified at trial. After spending a significant amount of time with the children and watching their interactions with Mother during visitations, Showalter told the court she does not think Mother can meet the children's needs.

         Mother also testified, telling the court that her previous case with the Department ended in May 2015 and that the children were returned to her care after having been previously removed. Mother agreed her relationship with Boyfriend was abusive and they fought often. Mother stated that she had attended a drug rehabilitation program and had been clean, but recently relapsed and used methamphetamines. Mother also explained that the methamphetamines for which she was arrested were not hers, but she had found them at the home she wanted to rent and was taking them to show the landlord. Mother also agreed that she continues to speak to Boyfriend because he helps her when she requires it. Mother told the court that if it granted the requested extension, she would comply with all the requirements of the Department's family service plan.

         The trial court denied Mother's request for an extension of time and concluded that termination of Mother's parental rights were in the best interest of the children and that Mother violated six statutory provisions in the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (F), (I), (O) & (P) (West, Westlaw through 2017 1st C.S.). This appeal followed.

         II. Sufficiency of the Evidence

         By her third issue, which we address first, Mother challenges the legal and factual sufficiency of the evidence used to terminate her parental rights.

         A. Standard of Review

         "Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties and powers normally existing between them." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). While parental rights are of a constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

         A court may order the termination of a parent-child relationship if it is shown by clear and convincing evidence that a parent has met at least one of the statutory factors listed in the family code, coupled with an additional finding by clear and convincing evidence that termination is in the child's best interest. See Tex. Fam. Code. Ann. § 161.001(b)(1)-(2); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental termination and that one act or omission of conduct satisfies the first prong); In re E.M.N., 221 S.W.3d 815, 820-21 (Tex. App.-Fort Worth 2007, no pet.). "Clear and convincing evidence" is defined as the "measure or degree of proof that 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 Ann. § 101.007 (West, Westlaw through 2017 1st C.S.). "This intermediate standard falls between the preponderance of the evidence standard in civil proceedings and the reasonable doubt standard of criminal proceedings." In re L.J.N., 329 S.W.3d at 671. This heightened standard of review is mandated not only by the family code, see Tex. Fam. Code Ann. § 161.001, but also the Due Process Clause of the United States Constitution. In re E. N.C. , 384 S.W.3d 796, 805 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). "It is our obligation to strictly scrutinize termination proceedings and strictly construe the statute in favor of the parent." In re L.J.N., 329 S.W.3d at 673.

         In a legal sufficiency review, we look at all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. Furthermore, we must assume that the factfinder resolved disputed facts in favor of its findings if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient and render judgment in favor of the parent. Id.

         We review challenges to the factual sufficiency of the evidence in a termination proceeding by giving "due deference to a [trial court's] factfindings, " and we do not "supplant the [factfinder's] judgment" with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). In our review, we should "inquire 'whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [] allegations.'" Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. However, in applying this standard, we must not be so rigorous in our analysis that the only fact findings that could withstand review are those established beyond a reasonable doubt. Id.

         B. Applicable Law and Discussion

         Mother's rights were terminated under Texas Family Code section 161.001(b)(1) (D), (E), (F), (I), (O), (P), and in the best interest of the children. See Tex. Fam. Code Ann. § 161.001.

         1. Section 161.001(b)(1)(D) and (E)

         a. Applicable Law

         Family Code section 161.001(b)(1)(D) states: "that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." See id. §161.001(b)(1)(D). Section (E) states: "that the parent 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." See id. 161.001(b)(1)(E). As these grounds address similar requirements, we will address them together.

         "To endanger means to expose to loss or injury, to jeopardize." In re E.M., 494 S.W.3d 209, 221 (Tex. App.-Waco 2015, pet. ref'd). "Both subsections thus require 'endangerment'-that is, jeopardizing the child's physical or emotional well-being." In re R.D., 955 S.W.2d 364, 367 (Tex. App.-San Antonio 1997, pet. ref'd.) "But they differ as to the cause of the endangerment." Id. "Under both subsections, therefore, termination must rest upon parental conduct. But subsection D permits termination because of a single act or omission, while subsection E requires a 'course of conduct.'" Id.

Subsections D and E also differ in the relationship each requires between the parental conduct and the endangerment. Subsection D requires the endangerment to be the direct result of the child's environment and only an indirect result of a parental act or omission; subsection E, on the other hand, requires the endangerment be a direct result of parental conduct. Subsection D thus permits a less than direct relationship between the parental conduct and the endangerment but it also requires an additional factor-an endangering environment-to be proved, while subsection E requires a direct relationship but this relationship, standing alone, justifies termination.

Id. at 367-68.

         "A parent's illegal drug use and drug-related criminal activity may also support a finding that the child's surroundings endanger his or her physical or emotional wellbeing." In re E.M., 494 S.W.3d at 222. Also, because "it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(b)(1)(E)." Id. (quoting Walker v. Tex. Dep't Fam. & Prot. Servs., 312 S.W.3d 608, 617-18 (Tex. App.-Houston [1st Dist.] 2009, pet. denied)). "A factfinder may reasonably infer from a parent's refusal to take a drug test that the parent was using drugs." Id. "A parent's continued drug use demonstrates an inability to provide for the child's emotional and physical needs and to provide a stable environment for the child." Id.

         b. Discussion

         Here, the Department alleged that Mother's drug use, exposure of the children to a violent relationship with Boyfriend, and lack of employment and stable housing were the ...


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