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J. M. v. Texas Department of Family And Protective Services

Court of Appeals of Texas, Third District, Austin

February 28, 2018

J. M. and B. L., Appellants
v.
Texas Department of Family and Protective Services, Appellee

         FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. CV37, 431, HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Field.

          MEMORANDUM OPINION

          Melissa Goodwin, Justice.

         Raising six issues, J.M. and B.L. appeal from the trial court's final order terminating their parental rights, following a jury trial.[1] They challenge the legal and factual sufficiency of the evidence to support the jury's findings on the statutory predicate grounds concerning B.L.'s parental rights and the legal and factual sufficiency of the evidence to support the jury's best interest findings. See Tex. Fam. Code § 161.001(b)(1), (2). Because we conclude that the evidence was legally and factually sufficient to support the challenged findings, we affirm the trial court's final order of termination.

         Background[2]

         J.M. and B.L. are the parents of A.L., who was born in 2008, and J.M. and M.P. are the parents of A.M., who was born in April 2016.[3] At the time A.L. was born in 2008, J.M. was living with her parents. According to J.M., B.L. had violated his parole and was "sent back to jail, " but he was "occasionally" involved and had visitation with A.L. for the first few years of her life. Prior to April 2016, J.M. allowed A.L. to spend extended time with B.L.'s parents because she "wanted [A.L.] to have her grandparents, at least, in her life if her father wouldn't be there."

         J.M. began living with M.P. in 2015, and A.L. began living with M.P.'s parents in January 2016. In March 2016, M.P. was driving a vehicle with a suspended driver's license, and J.M., who was pregnant with A.M. at the time, was a passenger. A police officer initiated a traffic stop and, during the traffic stop, the police officer found drugs and drug paraphernalia in the vehicle. M.P. was arrested, and, according to the officer, both M.P. and J.M. admitted that they had been drug users in the past, and M.P. had signs of drug use including burn marks on his lip and "rotting" teeth.

         The Department of Family and Protective Services became involved with J.M. and M.P. shortly thereafter. A few days after A.M. was born in April 2016, the Department filed a petition for termination of parental rights and sought removal of A.L. and A.M. The trial court entered an order for protection, appointed the Department temporary sole managing conservator of the children, and placed both children with M.P.'s parents. A.L. already was living with M.P.'s parents, and they assumed care of A.M. as a newborn when she was released from the hospital after she was born. A few months later, J.M. and M.P. signed a family service plan. The Department, however, was unable to determine B.L.'s whereabouts, and eventually served him by substituted service.

         After the case was extended for an additional six months, the case proceeded to a jury trial in October 2017. B.L. did not personally appear for the trial, but he was represented by appointed counsel. The Department's witnesses included the police officer who initiated the traffic stop in March 2016, the Child Protective Services (CPS) investigator who was involved in the removal of the children, other CPS caseworkers involved in the case, counselors who provided or attempted to provide services to J.M., and B.L.'s father and stepmother. J.M. also testified on her own behalf. Although the evidence of J.M.'s drug use prior to the Department's removal of her children and after April 2017 was disputed, J.M. admitted to using methamphetamine on a daily basis from May or June 2016 to April 2017, that she was not a stable person "at the moment, " that she had not complied with some of the trial court's ordered tasks and services, that she had not paid child support, and that she only had one visit with her children during the pendency of the case. That visit was in May 2016. The evidence further showed that, during the pendency of the case, J.M. had continued to associate with persons with criminal records or unsavory reputations.

         The evidence concerning B.L. was undisputed that, other than one phone call with the CPS investigator, he did not communicate with the Department, did not attempt to have contact with A.L., and did not provide financial assistance for A.L.'s care during the pendency of the case. Both B.L.'s father and stepmother testified about B.L.'s past drug and alcohol problems, criminal record, and his lack of a relationship with A.L. Neither one of them knew where B.L. was at the time of trial, and B.L.'s father testified that he had not talked with his son for "a couple of years or longer." B.L.'s stepmother testified that B.L. "[didn't] want the responsibility that it takes to do what it takes for A.L., " and she agreed that he "[had] not really ever contributed to the well-being of [A.L.]" She explained that he had called her "one day" several years before the trial and told her he had "[come] into some money from somewhere" and that he was in California and that "was the one and only call that [they] had from him." It was both of their beliefs that it was in A.L.'s best interest for B.L.'s parental rights to be terminated. J.M. also testified that she had not spoken with B.L. for years and that the phone number that she had for him "was no good."

         The jury found that the parent-child relationship should be terminated between J.M. and her children and between B.L. and A.L. The trial court thereafter entered its order of termination in accordance with the jury's verdict, terminating J.M.'s parental rights based on section 161.001(b) (1)(D), (E), (F), (N), (O) of the Texas Family Code, and B.L.'s rights based on section 161.001(b)(1)(D), (E), (F), (N), and based on the jury's findings that termination of both parents' rights was in the children's best interest. See Tex. Fam. Code § 161.001 (b)(1) (D), (E), (F), (N), (O), (2). Both parents filed a motion for new trial, which was denied. This appeal followed.

         Analysis

         To terminate parental rights, the Department has the burden to prove one of the predicate grounds in section 161.001(b)(1) of the Texas Family Code and that termination is in the best interest of the child. See id. § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

         The applicable standard of proof is the clear and convincing standard. Tex. Fam. Code § 161.206(a); see In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (due process requires clear and convincing standard of proof in parental termination cases). The clear and convincing standard is "'that measure or degree of proof which 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.'" In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)); see also Tex. Fam. Code ยง 101.007 (defining "clear and convincing evidence"). Although "parental rights are of constitutional magnitude, ...


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