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In re C.M.

Court of Appeals of Texas, Fourteenth District

November 30, 2017

IN THE INTEREST OF C.M., JR., J.M., I.M., I.M., AND C.M., CHILDREN

         On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2016-03784J

          Panel consists of Justices Boyce, Jamison, and Brown.

          MEMORANDUM OPINION

          William J. Boyce Justice.

         Appellants S.A. ("Mother") and C.M., Sr. ("Father") appeal the trial court's final decree terminating their parental rights and appointing the Department of Family and Protective Services as sole managing conservator of their children C.M., Jr., J.M., I.M., I.M., and C.M. The trial court terminated both parents' rights on the predicate grounds of endangerment, constructive abandonment, failure to comply with a family service plan, and use of a controlled substance in a manner that endangered the health or safety of the children. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), & (P) (West Supp. 2017).[1] The trial court further found that termination of the parents' rights was in the children's best interest, and named the Department managing conservator of the children.

         In a single issue Mother challenges the factual sufficiency of the evidence to support the trial court's finding that termination is in the best interest of the children. In seven issues Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds for termination, and that termination is in the best interest of the children. Father also challenges the sufficiency of the evidence to support a finding that appointment of the Department as managing conservator was in the children's best interest. Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm.

         I. Factual and Procedural Background

         A. Pretrial Proceedings

         1. The Department Referral

         The Department received a referral alleging neglectful supervision and physical abuse, which arose out of an incident in which Father was shooting a gun at several men who also shot at the home where the parents and five children lived. At the time of the alleged shooting, the children ranged in age from four months to five years old. The report stated that Father associates with men who have threatened him and shot at his house. Father started shooting toward these men approximately a month before the referral, and since then the men had been coming to the house to shoot at Father in apparent retaliation. The children were reported to be at home during one of the shootings directed toward their home. It was reported that Father keeps loaded guns inside the house including an automatic weapon. At the time of the referral Mother was incarcerated due to holding a gun behind her back when law enforcement officers came to the home.

         It was also reported that Mother and Father take Xanax and use marijuana daily. The children have witnessed domestic violence in the home. The home was observed to have "roaches and spiders crawling all over the furniture and in the kitchen." There was very little food in the home to feed the children. When a Department representative came to the home, the parents denied entry to a locked room in the home. The Department removed the children "[d]ue to the neglectful supervision of the children at the hands of their parents who engage in domestic violence, are suspected of consorting with gang members, and who have allowed the home to disintegrate to the point that it is physically unsafe for the children to remain in the home."

         2. Parents' Criminal History

         Both parents were convicted of unlawfully carrying a weapon. Father was also convicted of theft, displaying a fictitious license plate, trespass, evading arrest or detention, and failure to give information.

         3. Parents' Department History

         In 2012, when C.M., Jr. ("Colin")[2] was a year old, and his sister, J.M. ("Julia") was nine months old, the Department received a referral from law enforcement officers. The referral was the result of an argument between the parents. After being dispatched to a disturbance with gunfire, officers found Mother, Father, Colin, and Julia walking down the street. When told to raise his hands Father grabbed the butt of a shotgun instead of raising his hands. At that point officers intervened and removed the gun from Father's hand. Father hid himself behind the two young children. Officers reported that they felt Father "had every intention of shooting them while using [the children] as a shield."

         Two years later, in 2015, the Department received another referral with regard to I.M. ("Isaac"), who was a year old at the time. The referral was a result of Isaac following Father to the store a block away from home because the parents did not know who was supervising Isaac. Bystanders saw the one-year-old walking alone and thought he was injured so they picked him up. When Father's cousin saw the bystanders holding Isaac, a disturbance ensued. It was reported that Father pulled a gun on the bystanders and the bystanders pulled a knife on Father. The child was not harmed and no arrests were made.

         Later in 2015, the Department received another referral regarding the home where the children were living. The report noted that the children's paternal aunt, who was in the home at the time, is a felon, had pending child endangerment charges against her, and was selling drugs from the home. It was also reported that someone shot toward the house approximately two months earlier. Father was robbing homes and was charged with breaking and entering; the shooting was considered possible retaliation for the alleged robberies. When the Department arrived at the family's house they observed that all the children had lice, and they would go all day without eating until 3:00 p.m. It was noted that all the adults in the home are "fighting among themselves."

         3. Family Service Plans

         After the children were removed, both parents were ordered to comply with family service plans requiring the parents to:

• participate in the anti-gang awareness program, which is offered through the Mayor's office;
• participate in couples counseling;
• refrain from engaging in any illegal criminal activities;
• provide the Department worker with a release of information for all service providers, medical personnel, and officers of the court to obtain records and progress information regarding their case;
• maintain stable and safe housing for a minimum of six months consecutively;
• provide their current caseworker with any and all sources of income for themselves and their children by the 15th of each month;
• participate in and successfully complete a psychosocial evaluation;
• attend, actively participate in, and successfully complete parenting classes;
• participate in drug/alcohol testing upon request by the Department or a provider; and
• participate and complete a drug/alcohol assessment.

         4. Pretrial Services

         Each parent participated in a psychosocial evaluation as required by the family service plans; the assessments were admitted at trial. Mother's assessment reflects that at the time of the assessment she was facing criminal charges for the offense of unlawful carrying of a weapon, which was alleged to have occurred three days before the Department received the report about the children. Mother reported that Father gave her the gun just before the event in which the children were removed.

         Mother reported that she and Father live in Father's grandmother's home and have been in a relationship for seven years. Mother's first child was born in 2011 when she was 16 years old and she was in the eighth grade. Mother reported experimenting with marijuana beginning at age 14, and smoking it approximately two times per day, but not in front of her children. She reported testing positive for marijuana during one of her pregnancies.

         Regarding the incident that led to the children's removal, Mother reported that Father and his brother-in-law were fighting when "things got out of hand." After the brother-in-law was "kicked out of the house, " Mother "was unsure about what happened after the fight" because she was arrested for carrying Father's gun. According to Mother, the fight arose because of "the unruly living environment" in which the family lived. Several extended family members lived in the home. Mother explained that "people were always bumping heads, " and "there was always a lot of chaos."

         The evaluator concluded that Mother seemed to understand how the events may have led to the removal of her children. She cares about her children and "seems genuinely sad that her children have been removed from her care." The evaluator concluded that Mother appeared to know how to care for and nurture her children, but may not have fully considered the impact of alcohol and marijuana on parenting.

         Father also participated in a psychosocial evaluation in which he identified his grandmother as a support, but reported that his biological father had been in prison for his entire life, his mother was uninvolved, and that his uncle recently passed away. Father also had four brothers, one of whom was "involved in the legal system for multiple offenses." At the time of the evaluation, Father was on community supervision for unlawful carrying of a weapon. Father attributed the current Department case to a "lifestyle" issue, claiming that he was in the "wrong place at the wrong time." Father explained that his brother-in-law "started problems in their neighborhood with strangers, " and that the strangers "shot guns in the air, " over the course of several nights. Father said he was angry at his brother-in-law as a result, and the two of them "started fighting." After the fight with his brother-in-law, Father reported that the Department "appeared at their home due to the complaints of 'drugs' and the 'shootings.'" Father denied that there had been any negative disturbances in his home.

         The evaluator concluded that Father also seems to understand how the events led to the removal of the children. He also seems to understand how the environment may have contributed to the events, but does not take personal responsibility for his choices.

         Father's drug testing while the Department case was pending, shows the following positive results:

• February 16 2016 for marijuana;
• June 17, 2016 for benzodiazepine;
• July 6, 2016 for methamphetamine, cocaine, and ...

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