IN THE INTEREST OF D.D.M., J.C.M., AND J.D.M., JR., CHILDREN
Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 89321-F
consists of Justices Lloyd, Kelly, and Hightower.
RICHARD HIGHTOWER JUSTICE
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.
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.
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.
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.
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. Within a week, the Department filed suit
seeking custody of J.C.M. and J.D.M.
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.
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. 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."
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
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.
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.
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
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.
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.
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.
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.
Standard of review
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