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In re L.M.

Court of Appeals of Texas, Fourteenth District

April 9, 2019

IN THE INTEREST OF L.M., A CHILD

          On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2017-04307J

          Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.

          OPINION

          KEVIN JEWELL JUSTICE

         Appellant E.A.M. ("Father") appeals the trial court's final decree terminating parental rights to his child L.M. ("Louise")[1] and appointing the Department of Family and Protective Services as the child's sole managing conservator. The trial court terminated Father's parental rights on predicate grounds of endangerment, constructive abandonment, and failure to complete a family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), and (O). The trial court further found that termination of Father's rights was in the child's best interest. In four issues Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and that termination was in the child's best interest. Because we conclude the evidence is legally and factually sufficient to support the trial court's findings, we affirm.

         Maternal relatives C.M. and J.M. ("Intervenors") appealed the trial court's order striking their petition in intervention. However, Intervenors did not file a brief. On January 22, 2019, this court ordered intervenors to file a brief on or before January 28, 2019, or risk dismissal of their appeal for want of prosecution. Intervenors filed no brief. We therefore dismiss Intervenors' appeal.[2]

         I. Factual and Procedural Background

         A. Pretrial Proceedings

         1. The initial referral and investigation

         The Department received a referral alleging neglectful supervision of Louise. Events leading to the referral began with a response to a domestic disturbance call at the parents' home by Humble Police Department Officer Andrew Knight. M.R.H. ("Mother") answered the door with bruises on her forehead "in a hysterical state." Knight observed multiple tents containing growing marijuana plants in the apartment and a marijuana pipe on the floor. Knight observed Louise-one year old at the time-walking around the apartment holding a container of Xanax. Both parents were arrested for endangering a child and Father also was charged with assault of a family member and possession of marijuana. Louise was released to a family friend.

         The Department investigated. Mother denied knowledge of the marijuana plants. According to the investigator's report, Mother "admitted to domestic violence in her relationship with [Father]." The investigator further noted that Mother "was observed with multiple lumps and bruises on her face during the interview." Mother signed a safety plan and agreed to work with the Department.

         Father denied any domestic violence stating, "everybody gets into it." When the caseworker asked Father about Mother's bruises Father began crying and asked if Mother was going to leave him. Father denied having multiple marijuana plants and claimed he had only two plants for personal use. Father also signed a safety plan and agreed to work with the Department.

         Three days after the arrest Mother called the caseworker and informed her that Mother and Father had been released from jail and the endangerment charges had been dropped.

         Approximately two weeks after Louise's removal, Father tested positive for marijuana. One week later, neither parent appeared for requested drug testing, and Mother informed the caseworker that she would not speak with the caseworker until speaking with her attorney. For several months the caseworker attempted to contact Mother, Father, and the caregiver who was caring for Louise. The caseworker was unable to contact Mother and Father. Louise was placed with a friend of Mother's who cared for Louise for approximately one month, after which the caregiver no longer wanted to care for Louise. The caregiver expressed the belief that only the parents had "legal rights to the child" and that it was inappropriate for either the caregiver or the Department to care for Louise.

         Several months later, not knowing where Louise was, the caseworker requested a welfare check on Louise by the Humble Police Department. A police officer went to the residence, but Mother refused to open the door. The officer smelled the odor of marijuana emanating from inside the house and could see a child through the window that appeared to be the same age as Louise.

         2. Father's criminal history

         Listed on the removal affidavit is Father's criminal history dating from 1995 through 1999. In 1995 Father was convicted of burglary of a habitation and sentenced to four years' confinement. In 1997 he was convicted of unlawfully carrying a weapon and sentenced to 90 days' confinement. In January 1999 Father was again convicted of unlawfully carrying a weapon and sentenced to 120 days' confinement. In November 1999 Father was convicted of aggravated assault with a deadly weapon and sentenced to eight years' confinement. No criminal convictions occurring after 1999 are listed in the record.

         3. Family service plan

         The Department created a family service plan for Father, which the court incorporated into an order. Father was served with the Department's petition for termination and was made aware of the Department's involvement and his need to complete services to obtain the return of his child.

         B. Trial

         Trial began in November 2018. At the beginning of trial the court admitted into evidence copies of Louise's birth certificate, DNA results establishing Father's paternity, the removal affidavit summarizing the above facts, the trial court's protection order and temporary orders, the status hearing order, family service plans, both parents' drug test results and criminal records, a police report involving a domestic violence incident, Louise's therapist's notes, the Child Advocate's report, the permanency plan and progress report, and the reporters' record from a pre-trial hearing held the previous April. Father objected to the removal affidavit as hearsay, and he objected to the temporary orders without stating a basis. The trial court overruled Father's objections and admitted the evidence. The trial court also admitted a child caregiver resource form, a letter from one of Mother's former employers, and a letter from Louise's play therapist.

         The caseworker testified that Louise was two years old at the time of trial and was placed with adoptive foster parents who were meeting all of Louise's physical and emotional needs. The foster parents are married and have no other children. They live in a three-bedroom home that has been child-proofed. Louise had her own room and was "very comfortable" in the home. Louise was "very bonded" with her foster parents and had been bonded with them from the beginning. Louise knows them as "Mommy and Daddy" and knows their extended family members.

         As the caseworker explained, Louise first came into the Department's care when her parents were arrested for endangering her. Both parents were ordered to submit to random drug tests, but Father never appeared. Mother confirmed to the caseworker that Father had committed domestic violence against her and that Mother moved to California in part to escape Father.

         The caseworker testified that it was in Louise's best interest to remain with the foster parents. She testified that Father "barely had a relationship" with Louise. Father did not participate in any services. The caseworker had a contact number for Father, but Father never answered the phone or otherwise responded to efforts of the Department to contact him. The caseworker confirmed the police report, which detailed evidence of domestic violence at the time of removal and several marijuana plants found growing in the apartment.

         According to the caseworker, Father was made aware that a parental termination case was pending and that the case was a "participation of services" case-meaning his participation was required to preserve his parental rights over Louise. The parents were offered an opportunity to complete services but declined to do so. The caseworker called Father several times and left messages, but Father never returned her calls.

         The Child Advocate testified that it would be in Louise's best interest to remain with the foster parents. Louise called them "Mommy" and "Daddy," had bonded with them, and had developed social skills she did not have when she was with Mother. The Child ...


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