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In re E.M.

Court of Appeals of Texas, Fifth District, Dallas

April 1, 2019

IN THE INTEREST OF E.M., A CHILD IN THE INTEREST OF J.F., A CHILD IN THE INTEREST OF A.W. A/K/A A.U.W., A CHILD IN THE INTEREST OF C.C. AND C.M.C., JR., CHILDREN IN THE INTEREST OF W.M., A CHILD IN THE INTEREST OF J.P., A CHILD IN THE INTEREST OF C.M., A CHILD

          On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause Nos. DF-03-00170-R, DF-16-27206-R, DF-17-15414-R

          On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. DF-16-27181-U, DF-16-27204-U, DF-16-02192-U

          On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-10-13428-Y

          Before Justices Whitehill, Pedersen, III, and Nowell

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE.

         After a bench trial, the trial court terminated Mother's parental rights as to eight children. Mother asserts three issues on appeal: (i) the evidence is legally and factually insufficient to support the four § 161.001(b)(1) termination grounds that the trial court found; (ii) the evidence is legally and factually insufficient to support the trial court's findings that terminating Mother's rights was in the children's best interest, and (iii) the trial court erred by appointing the Texas Department of Family and Protective Services as managing conservator of six of the children.

         We overrule Mother's issues and affirm.

         I. Background

         This opinion addresses seven appeals from seven different termination cases involving a total of eight children. These are the eight children in order from oldest to youngest, along with the year in which each was born:

E.M. (male) 2002
C.M. (male) 2007
J.P. (female) 2009
J.F. (female) 2011
W.M. (male) 2012
C.M.C., Jr. (male) 2013
C.C. (female) 2014
A.W. (female) 2017

         A. Factual Overview

         Mother was born in 1984. She had babies in 1999 and 2001. A court terminated her parental rights as to those two children in 2006, and that termination is not part of this appeal.

         From 2001 through 2016, the Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services received and investigated several referrals about Mother. The referrals generally involved neglect and abuse allegations.

         The events leading to the termination cases now before us began in February 2015.[1] On February 23, 2015, the Department received a report that Mother had left her seven children (A.W. had not been born yet) with her aunt about three months earlier. E.M. alleged that he was repeatedly left to care for his siblings and that the aunt "trie[d] to whip him and his siblings all the time." The children were not going to school.

         The Department found and met with Mother about two weeks later. After that, the Department could not find her or the children again until June 2016 when Mother was ticketed because the children were not properly restrained in her vehicle. Mother claimed that the children were staying with her mother until she could find a place to stay.

         In September 2016, Mother took the children away from her mother's residence. Mother told the Department in a phone call or text message that she and the children were staying in a Motel 6 off I-30 in Arlington. In a meeting on October 7, 2016, Mother told the Department that she was still at the motel and the children were not in school.

         In November 2016, Mother contacted the Department and said that the children were staying with a different aunt. Mother did not have stable housing, and the children still were not in school. E.M. later contacted the Department and reported that this aunt was hitting the children and that her boyfriend was using drugs in her apartment.

         In December 2016, Mother made a scene at the daycare where three of her children were. She took those children away in a car that did not have license plates or car seats. There was trial testimony showing that the Department decided to remove the children from Mother's custody based on this incident.

         B. Procedural History

         On December 22, 2016, the Department filed six original petitions for protection, conservatorship, and termination addressing seven of the eight children involved in this appeal. (Again, A.W. had not been born yet.) One petition addressed two children, C.C. and C.M.C., Jr. The seven children were removed before the end of 2016.

         These six cases were still pending when Mother gave birth to A.W. in June 2017. The Department filed an original petition for protection, conservatorship, and termination relating to A.W. in August 2017. A.W. was removed from Mother's custody that same month.

         All seven cases were tried together in a nonjury trial from May 22 to May 24, 2018. On June 7, the State filed a motion to reopen the evidence, and on June 8 the trial court heard additional evidence regarding that motion.

         The trial court later signed judgments terminating Mother's parental rights as to all eight children. The judgments also terminated the children's fathers' parental rights with one exception-C.C. and C.M.C., Jr.'s father was appointed their permanent managing conservator. The Department was appointed managing conservator of the other six children.

         Mother timely appealed in each case.

         II. Analysis

         A. Issue One: Is the evidence legally or factually insufficient to support the § 161.001(b)(1) termination grounds that the trial court found?

         Mother's first issue attacks the sufficiency of the evidence to support the § 161.001(b)(1) termination grounds that the trial court found against her. We reject her argument, holding that the evidence was legally and factually sufficient to support the findings under § 161.001(b)(1)(N).

         1. Standard of Review

         Because terminating parental rights implicates fundamental interests, the clear and convincing standard of proof applies in termination cases. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). "Clear and convincing evidence" is the measure or degree of proof that will produce in the factfinder's mind a firm belief or conviction as to the truth of the matter to be proved. Fam. § 101.007.

         Our standards of review reflect the elevated burden at trial. In re N.T., 474 S.W.3d 465, 475 (Tex. App.-Dallas 2015, no pet.). Specifically, in both legal and factual sufficiency review, we consider all the evidence. Id. Under both standards we defer to the factfinder's determinations as to witness credibility. Id.

         In a legal sufficiency review, we credit evidence that supports the verdict if a reasonable factfinder could have done so, and we disregard contrary evidence unless a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). However, we do not disregard undisputed facts that do not support the verdict. Id. at 113. Even evidence that does more than raise surmise and suspicion will not suffice unless it can produce a firm belief or conviction that the allegation is true. Id. If no reasonable factfinder could form a firm belief or conviction that the allegation is true, the evidence is legally insufficient. Id.

         In a factual sufficiency review, we likewise determine whether the factfinder could reasonably form a firm belief or conviction that the State's allegations are true. In re A.B., 437 S.W.3d at 502. "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. at 503 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We must undertake an exacting review of the entire record with a healthy regard for the constitutional interests at stake. Id. However, our review "must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

         2. Applicable Law

         The trial court may terminate the parent-child relationship if the factfinder finds by clear and convincing evidence that (i) the parent committed one or more acts or omissions enumerated in Family Code § 161.001(b)(1) and (ii) termination is in the child's best interest. Tex. Fam. Code § 161.001(b).

         Here, the trial court found the predicate facts set forth in § 161.001(b)(1)(D), (E), (N), and (O) as to each child. Those subsections provide as follows:

• The parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Id. § 161.001(b)(1)(D).
• 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." Id. § 161.001(b)(1)(E).
• The parent "constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and: (i) the department has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly visited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment." Id. § 161.001(b)(1)(N).
• The parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child." Id. § 161.001(b)(1)(O).

         To prevail on her first issue, Mother must show that the evidence is insufficient to support the findings under all four subsections. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the ...


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