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In re D.R.M.

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

December 28, 2017

In the Interest of D.R.M., J.Y.M., D.M.M., and D.N.M., minor children

         On appeal from the 430th District Court of Hidalgo County, Texas.

          Before Justices Rodriguez, Benavides and Longoria Memorandum Opinion by Justice Longoria



         Appellant J.M. ("Father") appeals the trial court's order terminating his parental rights to D.R.M., J.Y.M., D.M.M., and D.N.M.[1] On appeal, Father argues that: (1) the termination proceedings violated the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution, see U.S. Const. amend. IV, V, XIV; (2) the evidence was legally and factually insufficient to support termination based on an act or omission under § 161.001(b)(1), see Tex. Fam. Code Ann. § 161.001(b)(1)(A), (C), (N), (O) (West, Westlaw through 2017 1st C.S.).; and (3) the evidence was legally and factually insufficient to establish that termination was in the best interests of the children. See Tex. Fam. Code Ann. § 161.001(b)(2). We affirm.

         I. Background

         Adan Guzman, the Departments' primary caseworker throughout this case, testified on behalf of the Department concerning the underlying, and undisputed, facts. D.R.M., J.Y.M., D.M.M., and D.N.M. are the children of Father and S.M. (Mother).[2] In May of 2013, D.R.M. and J.Y.M. were removed from Father and Mother's care due to medical neglect. At the time of removal, D.R.M. had a radius fracture, and J.Y.M. was underweight, had four back left rib fractures, a bruised liver, and a broken wrist. Father and Mother did not offer any explanations for the children's injuries. J.Y.M. was sent to Corpus Christi to receive Early Childhood Intervention Services, and D.R.M. was treated by child abuse specialists for "neglect and physical abuse." Investigations also revealed that Mother had a problem with cocaine use and a history of burglary.

         In August 2014, the trial court awarded permanent managing conservatorship over D.R.M. and J.Y.M. to the children's paternal grandmother (Grandmother). Father and Mother retained visitation rights. In February of 2015, the Department of Family and Protective Services (the Department) filed its original petition to terminate Mother's and Father's parental rights in regard to D.R.M. and J.Y.M. Just one month later, D.M.M. and D.N.M., twins, were born prematurely to Father and Mother. In April of 2015, the Department filed a petition to terminate Father's and Mother's parental rights with respect to the twins, and in July of 2015, the two termination cases were consolidated. Guzman testified that the twins remained in the neonatal intensive care unit (NICU) because they were born prematurely. However, he also related that Mother left the hospital after she was discharged without ever visiting the twins even though Mother claims she attempted to visit the twins. Likewise, Father did not visit the twins in the NICU. The Department filed a temporary order to have the twins removed from Father and Mother's custody and relocated to San Antonio. Guzman testified that even though Father was offered assistance and transportation to visit the twins more frequently, Father only visited his children a few times over the next several years.

         In January of 2016, Grandmother surrendered the two older children to the Child Protective Services (CPS) office in Edinburg because she claimed that she was unable to continue caring for the children due to her health. In April of 2016, an order terminating Father's parental rights to all four of his children was entered by an associate judge based on subsections 161.001(b)(1)(A), (C), (N), and (O). Father requested a de novo hearing from the associate judge's order, which the trial court denied. This Court reversed that decision and remanded to the trial court for a de novo trial. In re A.A.T., D.R.M., J.Y.M., D.M.M., and D.N.M., No. 13-16-00269-CV, 2016 WL 8188946 (Tex. App.-Corpus Christi Aug. 25, 2016, no pet.) (mem. op.). The de novo trial occurred on June 12, 2017. The trial court terminated Father's parental rights as to all four children. This appeal ensued.

         II. Constitutional Challenge

         In his first issue, Father argues that his Constitutional rights were violated. He asserts that Guzman deliberately misled the trial court and gave a false impression of the case by omitting certain important details, even though Father concedes that "[Guzman] mainly testified truthfully." More specifically, he argues that: (1) conflicting evidence was presented at trial; (2) the Department's petition was overly broad and thus did not give Father adequate notice of what the grounds for termination were, in violation of the Fifth and Fourteenth Amendments; and (3) the removal of the twins was an unlawful seizure under the Fourth Amendment. U.S. Const. amend. IV, V, XIV.

         Generally, a party must make a timely objection to the trial court in order to preserve error for appeal. In re B.L.D. & B.R.D., 113 S.W.3d 340, 350 (Tex. 2003). This is true for parental termination cases as well as constitutional challenges. See id.; Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.-Waco 2008, pet. denied).

         Although Father raises several constitutional issues on appeal, the record reveals that he failed to present any of these objections to the trial court below. Accordingly, the trial court had no opportunity to correct any potential errors before rendering its verdict. In re B.W., 99 S.W.3d 757, 760 (Tex. App.-Houston [1st Dist.] 2003). Father has failed to preserve his constitutional challenges for appellate review. In re B.L.D., 113 S.W.3d at 350. Additionally, Father continually refers to the record of the first trial to support his constitutional challenges on appeal. However, the transcript from the previous termination trial was not introduced as evidence at the de novo trial. Since the transcript of the first trial was not introduced during the de novo trial, evidence from the first trial could not be considered by the trial court in the de novo trial. Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.-Dallas 2005, no pet.).

         However, even assuming that Father preserved his constitutional challenges, we find that they hold little merit. For example, Father argues that the pleadings were so broad as to deprive him of due process because they did not give him adequate notice of what he was being accused of. However, all of the Department's petitions and subsequent amended petitions alleged the very grounds upon which his parental rights were ultimately terminated. Furthermore, Father's parental rights were terminated pursuant to 161.001(b)(1), subsections (N) and (O) in the first trial in 2016. So it is difficult to argue that Father did not know that the Department would proceed to argue the same grounds in the 2017 de novo trial. Lastly, concerning the alleged unconstitutional removal of his children, specifically the twins, the trial court entered a temporary order with respect to D.R.M. and J.Y.M. in May of 2015 and another temporary order concerning the twins D.M.M. and D.N.M. in July of 2015. "A trial court's decision to allow the Department to maintain custody of a child following an adversary hearing is reviewable, if at all, through a petition for writ of mandamus." In Interest of J.D.S., 494 S.W.3d 387, 389 (Tex. App.- Waco 2015, no pet.). Father did not challenge the initial removal of the children in the trial court and he did not file a writ of mandamus. Also, the children's initial removal has been superseded by the entry of a final order of termination. See id. Therefore, we overrule Father's first issue.

         III. Termination Under Section 161.001(b)(1)

         In issues two, three, four, and five, Father claims that the evidence was legally and factually insufficient to support the trial court's finding that Father committed any of the respective statutory grounds for termination alleged by the Department. See Tex. Fam. Code Ann. § 161.001(b)(1)(A), (C), (N), (O).

         A. Standard of Review

         Parental rights may be terminated only upon proof of clear and convincing evidence that the parent has committed an act prohibited by section 161.001(b)(1) of the Texas Family Code, and that termination is in the best interest of the child." In re E.A.G., 373 S.W.3d 129, 140 (Tex. App.-San Antonio 2012, pet. denied). Clear and convincing evidence is "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.).

          When the legal sufficiency of the evidence is challenged in a parental termination case, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Accordingly, we assume the finder of fact resolved all disputed facts in favor of its finding, if a reasonable factfinder could do so; likewise, we disregard all evidence that a reasonable factfinder could have disbelieved. Id. When the factual sufficiency is challenged in a parental termination case, we also consider the conflicting evidence. Id. If the disputed evidence is so "significant" that it would prevent a reasonable factfinder from forming a firm belief of the findings, then the evidence is factually insufficient. Id.

         B. ...

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