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In re T.L.M.

Court of Appeals of Texas, Ninth District, Beaumont

December 19, 2019

IN THE INTEREST OF T.L.M., A.M.M., M.N.M., AND C.N.M.

          Submitted on November 5, 2019

          On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV1712740

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON Justice.

         This appeal arises from a judgment terminating Mother's and Father's parent-child relationships with four of their children. The four children discussed in the appeal and whose parents had their rights terminated are Jay, Sophie, Paige, and Liam.[1] While they share the same mother, that is not true of their respective fathers.

          The attorney representing Mother in her appeal filed a brief asserting no arguable grounds support Mother's appeal.[2] We agree, as no arguable issues are available to Mother to support an issue claiming the trial court's judgment should be reversed. Father, on the other hand, filed a brief in which he raises issues challenging the merits of the trial court's rulings terminating his rights to Paige and Liam. In Father's brief, Father raises five issues that argue the evidence does not support the trial court's rulings.[3] We conclude Father's issues have no merit, so we affirm.

         Background

         In December 2017, the Texas Department of Family and Protective Services sued Mother and three men it alleged were the parents of the four children that are the subject of the appeal. When the Department sued, Jay was eight, Sophie was nearly four, Paige was two, and Liam was eleven-months old. In response to the suit, the trial court signed an emergency temporary order, which authorized the Department to remove the four children from Mother's care. The Department identified the men who it claimed were the fathers of the four children named in the suit. The Department's petition includes a claim to terminate the rights of the parents of the four children identified in the suit.

         To simplify the discussion, we provide the background in the case using the lens required under the applicable standards of review that apply to Father's issues.[4] In general, as a reviewing court, we defer to the trial court's role in reaching its findings if the evidence in the trial allowed the court to form a firm belief or conviction that the matter the Department was asking that it find was true.[5] Here, the record shows that Mother and Father never married. They lived together for only a brief period after Paige and Liam were born.

         The testimony the trial court heard allowed the trial court to conclude that Father knew Mother had problems with drugs and alcohol even before Paige and Liam were born. When Father testified, he admitted he had seen Mother under the influence of drugs. And he stated she drank beverages containing alcohol when she was high. He acknowledged that Mother's drug and alcohol abuse affected Mother's ability to parent, as he stated he did not think Mother should be allowed to keep the children when she used drugs. Father explained that Mother's drug use had "always been our issue." But he never described any efforts he made to protect Paige or Liam from her. Instead, he left the home, leaving the two children in her care after living with them for just seven or eight days after they were born. And Father agreed he had not yet formed strong bonds with Paige or Liam.

         Father also addressed his own drug use when he testified. He admitted he and Mother used methamphetamine before Paige and Liam were born. But the record contains conflicting testimony about whether Father's illegal drug use continued after the children were born. For instance, Mother and mother's father (Grandfather), testified they had seen Father around the children when he was high. And Mother testified Father continued to use illegal drugs after Paige and Liam were born. Mother also suggested that Father sold drugs, stating he did so "when [she] asked him to." Nonetheless, Father points to his testimony denying he used illegal drugs after Paige and Liam were born.

         The testimony reflects that Mother's drug and alcohol use concerned others too. In September 2017, someone notified the Department that Mother was not supervising her four children properly. The Department acted on information, which claimed that Mother's neglect was due to her abuse of alcohol and drugs. Paige and Liam were living with Mother at that time, but the evidence does not show whether Father was living with them then.

         The Department accomplished little between September and November, but it became more active when it learned that the police came to Mother's home in November 2017 due to an incident involving family violence. During the trial, one of the Department's caseworkers blamed the delays that occurred in her investigation in September and October 2017 on Mother, claiming that after opening her file, Mother never got "in touch with her." But when the Department received the report in November alleging that Father had assaulted Mother while the children were allegedly present, the Department learned Father had been arrested as a result of the incident reported to the police.[6]

         Father downplayed the incident that led to his arrest on the family violence claim, noting that it had later been dismissed by the police. Yet Father also admitted in the trial that he had used a baseball bat to break a window in Mother's car while she was leaving the home after they argued there. But he claimed the children were not present when the incident occurred, explaining they were inside the home. Father offered excuses for his conduct, explaining he broke the car's window to remove some things from it because he thought Mother was stealing them.

         When Mother testified, no one ever asked her to explain where the children were when the incident involving the baseball bat occurred. She also downplayed the incident, claiming she had not been injured. Nonetheless, Mother testified there was another incident where Father engaged in violent conduct directed at her. She explained Father hit her once before, and that altercation also resulted in the police coming to their home.

         Mother also addressed Father's use of drugs in the trial. According to Mother, she had seen Father "smoke weed." Father also told her he used meth. Mother explained she last saw Father using illegal drugs in 2018. Mother also addressed her drug and alcohol use. Mother admitted using methamphetamine in the past and drinking beverages that contained alcohol. Mother denied ever using drugs in front of her children, but she admitted that, on at least two occasions, she was intoxicated in their presence. Mother agreed she used methamphetamine at least once after the Department removed the children from her home. And she agreed she failed to complete a drug rehabilitation program even though she had enrolled in one. Mother agreed she had refused to take drug tests in the months before the trial. She explained that she discontinued the tests because the Department said her case was nearly finished. A week before the last day of the trial, the police arrested Mother for allegedly manufacturing and delivering methamphetamine. Mother pleaded guilty to the offense. The court handling that case placed Mother on deferred adjudication for seven years.

         The evidence admitted in the trial shows that Father has two convictions for crimes that were state-jail felonies. Father's most recent conviction, which occurred three weeks before the trial, resulted from a charge alleging Father possessed methamphetamine in 2015. In the possession case, the trial court assessed a 600-day sentence.[7] Father's other conviction was for a burglary, which he committed in 1998. On the burglary conviction, Father served a two-year sentence.

         The parties chose to try the Department's claims to the bench. When the trial ended, the trial court terminated Mother's rights to Jay, Sophie, Paige, and Liam. It also terminated Father's rights to Paige and Liam.[8] The court signed a judgment, which carried out the court's findings, and terminated Mother's rights based on violations the court found under subsections D, E, N, O, and P of the Texas Family Code.[9] The court terminated Father's rights based on its findings that Father violated subsections D, E, and F of that same code.[10] Finally, the judgment contains best-interest findings, which were also necessary to terminate Father's and Mother's rights.[11]

         Mother and Father then filed their respective notices of appeal. On appeal, Mother filed an Anders brief.[12] But Father filed a brief raising several issues, and they assert the evidence does not support the court's findings terminating Father's rights. Father also challenges the trial court's best-interest findings.

         Analysis

         I. Mother's Appeal

         Under Anders, we are required to independently review Anders briefs to determine whether they comply with the requirements that apply to such briefs.[13]The brief Mother's attorney filed complies with the requirements. It presents an attorney's professional evaluation of the record and explains why no arguable grounds exist to support Mother's appeal.[14] Mother's attorney also represented that she sent Mother a copy of the brief, notified Mother of her right to file a pro se response, and explained how Mother could arrange to review the record in her appeal.

         In response to the notice, Mother filed a document in which she asks this Court to give her another chance to maintain her rights to her children. But Mother's response does not assert the trial court committed any specific errors terminating her rights. Instead, Mother requests that this Court vacate the trial court's judgment and require her to follow another program, which she outlines, that would allow the children to be returned to her if she completed the program.[15]

         After reviewing the record, counsel's brief, and Mother's response, we conclude no arguable grounds exist to support Mother's appeal. We also conclude that Mother's appeal is frivolous.[16] Therefore, we affirm the trial court's judgment terminating Mother's parent-child relationships with Jay, Sophie, Paige, and Liam. II. Father's Appeal

         In issues one through three, Father argues the evidence admitted in the trial is insufficient to support the trial court's rulings terminating his rights to Paige and Liam. In issues four and five, Father argues that the evidence does not show that terminating his rights is in Paige's and Liam's best interest.

         A. Standard of review

         First, we note the standards that apply to our review of an appellant's legal and factual sufficiency issues in a case involving the termination of a parent's rights. To involuntarily terminate a parent's rights to his children, the factfinder must conclude by clear and convincing evidence (1) that the parent committed one or more of the prohibited acts or omissions listed in section 161.001(b)(1) of the Family Code, and (2) that terminating the parent's rights is in the child's best interest.[17] In most cases, if the evidence supports the trial court's best-interest finding, the judgment will be affirmed even if the evidence supports just one of the many subsections in section 161.001(b)(1) that authorizes a trial court, on the required grounds, to terminate a parent's rights.[18] But when the judgment rests in whole or in part on subsection D or subsection E, fundamental fairness requires the appellate court to reach a parent's issues that raise challenges to either the D or E grounds for terminating a parent's rights.[19]

         In part, Father's brief argues that the evidence is not legally sufficient to support the trial court's rulings. In a legal sufficiency review, the appellate court must consider the evidence "in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true."[20] In doing so, we assume that the factfinder resolved disputed facts in a manner favoring the trial court's finding, if a reasonable factfinder could have made that finding that is being challenged in the appeal.[21] Thus, under a legal sufficiency review, we disregard all evidence a reasonable factfinder could have, by inference, disbelieved or found incredible.[22] And if the appellate court concludes that a reasonable factfinder could form a firm belief or conviction that the matter that the Department was relying on to terminate the parent's rights was true, we are obligated to hold that evidence is legally sufficient to support the finding the parent is complaining about on appeal.[23]

         Father also argues the evidence is not factually sufficient to support the verdict. Under factual sufficiency review, we consider and weigh all the evidence, deferring to the findings the factfinder made to avoid supplanting the factfinder's verdict with one of our own.[24] "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."[25] Under a factual sufficiency standard, the appellate court gives due deference to the factfinder's findings and must avoid substituting its own judgment for the factfinder's.[26]

          B. Analysis-Statutory Findings

         For convenience, we address Father's second issue challenging the trial court's subsection E finding before we address his other issues. According to Father, the record from the trial contains insufficient evidence to support the trial court's subsection E finding.

         Under subsection E, the Department had the burden to prove by clear and convincing evidence that (1) Father engaged in conduct that endangered Paige's and Liam's physical or emotional well-being, or (2) that Father placed Paige and Liam with a person or persons who engaged in conduct that endangered their physical or emotional well-being.[27] Thus, while subsection E focuses on the parent's conduct, it allows the trial court to include the parent's knowledge about the conduct of others when that person's conduct endangered the child.

         In deciding if factually sufficient evidence supports the trial court's subsection E finding in this case, we focus on whether the evidence established Father endangered Paige's and Liam's well-being as a "direct result of [his] conduct, including acts, omissions, or failures to act."[28] As the factfinder, the trial court had the right to consider Father's direct and indirect conduct to decide whether Father acted knowingly by exposing Paige and Liam to loss, to injury, or to circumstances jeopardizing their emotional or their physical health.[29]

         The record in most cases must contain more than evidence showing a single act or omission by the parent to support a subsection E finding. More than a single act is required to be proven in termination cases because subsection E requires the Department to establish the parent engaged in a voluntary, deliberate, and conscious course of conduct.[30] In deciding the case, the trier of fact can consider the actions and the inactions of a parent when evaluating whether the parent's conduct affected his children's well-being.[31] And the court can rely on evidence of acts or omissions before and after the children, the subjects of the proceedings, were born.[32] Thus, "[w]hile endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffer injury; rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone."[ ...


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