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In re D.D.M.

Court of Appeals of Texas, First District

July 9, 2019


          On Appeal from the 300th District Court Brazoria County, Texas Trial Court Case No. 89321-F

          Panel consists of Justices Lloyd, Kelly, and Hightower.



         Appellant J.M. appeals after having his parental rights to his two children terminated. He contends that the evidence is legally and factually insufficient to support a finding that he engaged in endangering conduct under Family Code section 161.001(b)(1)(E) and a finding that termination was in his children's best interest. He further contends that the trial court abused its discretion by appointing the Department of Family and Protective Services as permanent managing conservator of the children. Because the evidence is factually insufficient to support the trial court's finding that termination is in the children's best interest, we reverse the order of termination and remand for a new trial. We affirm, however, the trial court's appointment of the Department as permanent managing conservator of the children.


         J.M. is the biological father of two children, five-year-old D.D.M. and six-year-old J.D.M., the subjects of this suit. J.M. ended his relationship with the children's biological mother after he found out that she was having multiple affairs. One of the affairs resulted in the mother having another child, six-year old J.C.M. Although J.M. was not J.C.M.'s biological father, she called J.M. "daddy" and otherwise treated him as her father. After the couple split up, J.M. lived with his sister at her apartment, and the children stayed at the mother's apartment. The mother had another child, M.N., with yet another man after her relationship with J.M. ended.

         Sometime after the couple split up, J.M. learned through Facebook messages that some men at the mother's apartment were "whooping on [his] kids." J.M. called the police and asked them to conduct a welfare check on the children. A man living with the mother later spoke with J.M. over the phone and asked why he called "the police to come out and check on [the] kids." The record does not indicate how or if the police actually conducted the welfare check, but it is clear that the children were not taken from the mother. J.M. was still concerned that men at the mother's apartment were abusing his children, so he attempted to get the children from the mother's apartment himself.

         After a friend drove him to the mother's apartment, J.M. approached and knocked on the mother's door. He heard through the door a man on the inside say, "This is your baby daddy at the door." Then he heard a gun cock. J.M. quickly moved away from the door and returned to his friend's car, but he did not leave; he was still worried about the safety of his children. He looked back at the door to the mother's apartment and saw that it had been opened. J.M. turned to his friend and said, "Look here, man. I am here to try to get one of my kids." He then went back to the door and saw his son D.D.M. J.M. grabbed D.D.M., returned to the car, and left. J.M. later stated that, had the opportunity presented itself without the risk of being shot, he would have taken all the children.

         In early winter 2016, after J.M. got D.D.M. from the mother's house, he called the police for a second time and asked that they check again on the children at the mother's apartment. The police told him that there was nothing they could do because the Department had already taken the children from the home. This was news to J.M. The Department then sent a caseworker to the sister's apartment where J.M. was staying with D.D.M. The caseworker explained to him that J.C.M. and J.D.M. were taken from the mother on November 22, 2016, after the Department discovered that the mother's boyfriend had drowned two-month-old M.N. in a toilet because he would not stop crying.[2] Within a week, the Department filed suit seeking custody of J.C.M. and J.D.M.

         The following month, J.M.'s sister kicked him and D.D.M. out of her apartment. While on a bus with D.D.M., J.M. called the Department and informed it that he had been kicked out of his sister's apartment. He explained that he and D.D.M. were going to a relative's house to see if they could stay there or otherwise receive help. Later that same day, J.M. informed the Department that his sister was allowing him and D.D.M. to stay at her apartment but that she wanted him out within thirty days. Three days later, J.M. called the Department again. He informed it that he would not be able to find a place to stay before his sister kicked him out. J.M. stated that he had only $80 of food stamps and four diapers and that he would be incapable of properly caring for D.D.M. after being kicked out. As he put it, "I didn't want [D.D.M.] to sleep on the fence like I had to." The Department asked J.M. if he understood that he was asking it to take his child from him. He stated that he understood, and the Department took D.D.M. into its care.

         On January 23, 2017, the Department filed an original petition seeking custody of D.D.M. This case was consolidated with the Department's earlier petition that sought custody of J.C.M. and J.D.M.[3] The Department provided J.M. with a family-services plan that laid out requirements he had to satisfy to ensure that his parental rights were not terminated. The requirements included that he "participate in random drug testing"; "complete drug and alcohol assessments" if he tested positive on a drug test; "complete a psychological evaluation"; "participate in individual therapy"; and "maintain a safe and stable home environment as well as maintain employment."

         By the time trial began in September 2018, J.M. had taken four drug tests. The first was a leg-hair test on October 2, 2017. He tested positive for methamphetamine at a level indicating" very heavy use"; he also tested positive for marijuana. The second was a urine test a day later. He again tested positive for methamphetamine. The third was another leg-hair test, conducted on January 10, 2018. He tested positive for methamphetamine, marijuana, and cocaine. The fourth was also a leg-hair test. It was conducted on April 4, 2018 and returned positive for methamphetamine. J.M. completed his final drug test, another leg-hair test, on September 21, 2018, eight days after trial began. The final test returned positive for methamphetamine and ecstasy.

         Trial testimony revealed that J.M. completed his psychological evaluation and the drug and alcohol assessment, he was participating in individual therapy, he had been living in a safe home with his new girlfriend for four months, he was working forty hours a week at McDonald's earning $8.45 an hour, and he never missed a visit with his children. J.M. testified that he and his girlfriend were capable of paying their rent, utilities, and other expenses and would have enough money left over to cover food, education, medical, and related expenses for D.D.M. and J.D.M. A Department caseworker testified that the children loved their father and enjoyed their visits with him.

         The same caseworker explained that J.D.M. was diagnosed with a "mood disorder and conduct disorder, oppositional defiant disorder, and ADHD." She explained that, in the Department's care, J.D.M. is enrolled in weekly therapy to address these disorders. The caseworker testified that D.D.M. has "impulse control and conduct disorder and ADHD" and that he is currently in "play therapy." The caseworker averred that it was the Department's position that J.M.'s rights should be terminated and that the children should not be split apart but be placed together.

         The trial court also heard testimony from a Court Appointed Special Advocate. The CASA testified that the father's rights should not be terminated. When asked why, the CASA replied:

I'm at all the visits that [J.M.] has. He is very bonded with the children. The children are very bonded with him. Could he take care of them all the time? I haven't seen that yet. But they do . . . look forward to him. They do interact with him. Yes, they do wear him out, but there's a bond there. There's a definite bond.

         The trial court struggled on the record with this difficult case. The trial court explained that it was clear that the children were bonded to and loved J.M. It rejected the Department's argument that J.M. placed the children in a situation that endangered their emotional and physical safety when he took D.D.M. from the mother's apartment but left the other children there, noting "it was clear from the evidence he didn't want to leave the child there" but felt that he had to or risk serious physical harm to either himself or the children. Nevertheless, the trial court concluded that J.M.'s drug tests indicated, at the very least, that he used illicit drugs two months before trial, and that it was likely he used drugs during trial.

         The trial court noted that J.M.'s drug use was problematic both because he was well aware of the fact that his parental rights were in question, yet he still used drugs, and because his testimony was entirely inconsistent on his drug use: At first, when J.M. was asked about his drug use, he "plead[ed] the Fifth," then he claimed to have never used any drugs, and then-after repeated questioning-he admitted to using drugs at some point in the past. Accordingly, the trial court concluded that, by using illicit drugs, J.M. engaged in conduct that put the children's physical and emotional well-being at risk. For this reason, in addition to all of the other evidence presented, the trial court concluded that termination would be in the children's best interests. Accordingly, the trial court terminated J.M.'s parental rights.


         J.M. challenges the legal and factual sufficiency of the evidence supporting the trial court's finding that he engaged in conduct that endangered the physical or emotional well-being of his children under Family Code section 161.001(b)(1)(E), and the trial court's finding that termination of his parental rights would be in the children's best interests under Family Code section 161.001(b)(2). J.M. also challenges the trial court's appointment of the Department as the permanent managing conservator of the children.

         I. Standard of review

         It is well-established that a suit affecting the relationship between parents and their children implicates a natural right that is "far more precious than any property right." Santosky v. Kramer,455 U.S. 745, 758-59 (1982) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)); In re J.W.T.,872 S.W.2d 189, 194-95 (Tex. 1994). And when the government seeks to terminate that natural right, constitutional-based protections activate: Legislation that authorizes involuntary termination is strictly construed, the government must justify termination with "clear and convincing evidence," and termination orders are strictly scrutinized. In re A.C.,560 S.W.3d 624, 630 (Tex. 2018); Holick v. Smith,685 S.W.2d 18, 20 (Tex. 1985); cf. Ray v. Burns,832 S.W.2d 431, 434 (Tex. App.-Waco 1992, no writ) (in reviewing sufficiency of evidence, "close calls" go to parent (citing Lewelling v. Lewelling,796 S.W.2d 164, 168 (Tex. 1990)). "Clear and convincing" evidence denotes that ...

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