Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
In the Interest of D.R.M., J.Y.M., D.M.M., and D.N.M., minor children
appeal from the 430th District Court of Hidalgo County,
Justices Rodriguez, Benavides and Longoria Memorandum Opinion
by Justice Longoria
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. 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
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). 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.
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.
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
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,
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).
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.).
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
Termination Under Section 161.001(b)(1)
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).
Standard of Review
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
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