Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN THE INTEREST OF B.M., J.M., D.M., AND L.M., CHILDREN
appeal from the 156th District Court of Bee County, Texas.
Justices Rodriguez, Benavides, and Longoria
M. BENAVIDES, JUSTICE.
three issues, appellant D.M. (Mother) 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.
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. 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.
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.
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, and for Mother
to have more time to comply with the Department's service
plan. The trial court carried the motion through trial.
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.
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.
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
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.
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.
Sufficiency of the Evidence
third issue, which we address first, Mother challenges the
legal and factual sufficiency of the evidence used to
terminate her parental rights.
Standard of Review
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.
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.
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.
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.
Applicable Law and Discussion
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.
Section 161.001(b)(1)(D) and (E)
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.
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.
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.
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 ...