in the Interest of M.E.-M.N, Minor Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-09-00358-CV

IN THE INTEREST OF M.E.-M.N,
MINOR CHILD

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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OPINION
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I. Introduction

Appellant S.G. appeals the judgment terminating her parental rights to

M.E.-M.N. She contends in four issues that the trial court abused its discretion

by finding her appeal frivolous, that she was denied effective assistance of

counsel during the post-trial period, and that the evidence is legally insufficient to

support the trial court‘s endangerment findings. We affirm.

II. Factual Background

On May 9, 2008, the Texas Department of Family and Protective Services

(the Department) received a referral alleging neglectful supervision of two-year-
old M.E.-M.N. The referral alleged that, while M.E.-M.N. was present, Appellant

had passed out in a car at a methadone clinic where Appellant had been

receiving treatment to overcome her addiction to opiates. Department

investigator Stephanie Kolb subsequently visited Appellant‘s residence and

knocked on the door, but no one answered. Kolb then heard what seemed like a

small child telling her to come inside, but no one answered after Kolb knocked

again. Kolb called for law enforcement, fearing that the child might be in the

home unattended, and law enforcement entered the home. Inside, Kolb found

M.E.-M.N., Appellant, and Appellant‘s friend Danny Lee.

Kolb interviewed Appellant and learned that she had a history of

prescription drug abuse and that Appellant no longer had custody of her two

oldest children. After conducting further investigation—including positive drug

test results for both Appellant and M.E.-M.N.—and unsuccessfully attempting to

find suitable, short-term housing for M.E.-M.N., Kolb recommended on May 19,

2008, that M.E.-M.N. be placed into foster care.

III. Procedural Background

The Department initiated this termination proceeding against Appellant and

C.N., M.E.-M.N.‘s biological father, on May 20, 2008.1 Although Appellant initially

had retained counsel, her retained attorney withdrew in February 2009. The trial

court then found Appellant indigent and appointed new trial counsel.

1
C.N. has not appealed the termination of his parental rights to M.E.-M.N.

2
 After the September 2009 bench trial, the trial court terminated Appellant‘s

parental rights to M.E.-M.N., finding that Appellant had knowingly placed or

knowingly allowed M.E.-M.N. to remain in conditions or surroundings which

endangered M.E.-M.N.‘s physical or emotional well-being and engaged in

conduct or knowingly placed M.E.-M.N. with persons who engaged in conduct

which endangered the physical or emotional well-being of M.E.-M.N. and that

termination of Appellant‘s parental rights was in M.E.-M.N.‘s best interest.2 On

September 28, 2009, before the trial court signed the final order of termination,

Appellant‘s trial counsel filed a notice of appeal on Appellant‘s behalf. Also on

September 28, 2009, Appellant‘s trial counsel filed, and the trial court granted, an

―Agreed Motion to Withdraw as Counsel.‖3 The trial court did not, however,

appoint appellate counsel for Appellant, despite her indigence. The trial court

signed the final order of termination on October 6, 2009, but Appellant did not file

a motion for new trial or a statement of points for appeal.

After Appellant failed to timely file her appellate brief, we abated the appeal

and remanded the case to the trial court so that the trial court (1) could determine

whether Appellant was indigent and desired to continue the appeal, (2) could

appoint appellate counsel for Appellant, and (3) could permit Appellant to

develop an evidentiary record as to whether she was denied effective assistance

2
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (Vernon Supp. 2010).
3
The ―agreed order‖ permitting withdrawal of Appellant‘s trial counsel was
signed by Appellant‘s trial counsel and the Department‘s attorney, but it was not
signed by Appellant.

3
of counsel during the thirty-day period following the final order of termination.

See In re K.K., 180 S.W.3d 681, 687–88 (Tex. App.—Waco 2005, order) (abating

appeal for determination of whether parent was denied effective assistance of

counsel on appeal by failing to file brief), disp. on merits, No. 10-04-00303-CV,

2006 WL 561820 (Tex. App.—Waco Mar. 8, 2006, no pet.); In re S.D.S., No. 07-

04-00261-CV, 2004 WL 1879649, at *1 (Tex. App.—Amarillo Aug. 23, 2004,

order) (same), disp. on merits, 2005 WL 1038817 (Tex. App.—Amarillo May 3,

2005, pet. denied).

On remand, the trial court found that Appellant was indigent and wanted to

prosecute the appeal, and the trial court appointed appellate counsel for

Appellant. Appellant‘s new counsel then filed an ―emergency motion to comply

with abatement order,‖ and the trial court conducted a hearing on May 6, 2010.

After the May 6 hearing, the trial court found that Appellant was not represented

by counsel during the thirty-day period following entry of the final order of

termination, that no points of appeal were filed by Appellant‘s trial counsel, and

that Appellant‘s appeal would be frivolous. See Tex. Fam. Code Ann. §

263.405(d)(3) (Vernon 2008).

On June 2, 2010, Appellant filed her appellate brief and a ―motion to

extend time to file the brief and/or allow for supplementation of the brief.‖ We

granted Appellant‘s motion and stated that ―it is clear from the record and the

findings of the trial court that Appellant was not represented by counsel during

the post-judgment time for filing a statement of points and motion for new trial.‖

We also ordered (1) that the court reporter prepare and file a complete reporter‘s
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record without cost to Appellant, (2) that Appellant file a supplemental brief within

twenty days of the filing of the reporter‘s record, and (3) that we would ―treat

Appellant‘s complaints raised in her brief as a sufficient statement of points on

appeal.‖ Appellant then timely filed her supplemental brief.

IV. Discussion

Appellant contends in four issues that the trial court abused its discretion

by finding that her appeal would be frivolous,4 that she was denied effective

assistance of counsel in the post-trial period, and that the evidence is legally

insufficient to support the trial court‘s endangerment findings.5

A. Trial Court’s Frivolousness Finding

In the second issue of her initial brief and in the first issue of her

supplemental brief, Appellant contends that the trial court abused its discretion by

finding that her appeal would be frivolous. See Tex. Fam. Code Ann. §

263.405(d)(3). The trial court signed the final order of termination on October 6,

2009, but did not sign the order containing the frivolousness finding until May 6,

2010, well beyond the thirty-day deadline in section 263.405(d). See id. §

263.405(d). Although we abated this appeal on April 8, 2010, and remanded it to

the trial court, we remanded only for limited reasons and ordered that this appeal

would be ―automatically reinstated without further order‖ upon ―our receipt of the

4
Appellant‘s two briefs contain four total issues, but the second issue in her
initial brief and the first issue in her supplemental brief each challenge the trial
court‘s finding that her appeal would be frivolous.
5
Appellant does not challenge the trial court‘s finding that termination of her
parental rights is in M.E.-M.N.‘s best interest.

5
supplemental record.‖ The supplemental record was filed with this court on May

5, 2010. Thus, the trial court lost its abatement jurisdiction on May 5, 2010, but

signed the frivolousness order the following day. See generally Lewis v. State,

711 S.W.2d 41, 43 (Tex. Crim. App. 1986) (holding trial court exceeded its

authority by conducting evidentiary hearing outside scope of abatement

mandate). The Department suggests, and we agree and hold that the trial court

did not have jurisdiction on May 6, 2010, to render the frivolousness order and

that the frivolousness order is void. Therefore, we need not decide whether the

trial court abused its discretion by finding Appellant‘s appeal frivolous, and we

overrule the second issue of Appellant‘s initial brief and the first issue of

Appellant‘s supplemental brief. See Tex. R. App. P. 47.1.

B. Ineffective Assistance of Counsel

In the first issue of her initial brief, Appellant contends that she was illegally

denied effective assistance of counsel during the post-trial period because the

trial court permitted her appointed trial counsel to withdraw but did not timely

appoint appellate counsel.

Indigent persons in government-initiated parental-rights termination cases

have a statutory right to counsel, and that right includes the right to effective

assistance of counsel. In re M.S., 115 S.W.3d 534, 543 (Tex. 2003). To

successfully assert an ineffective assistance of counsel claim on appeal in a

termination case, the appellant must show (1) that counsel failed to perform in a

reasonably effective manner and (2) that ―the deficient performance prejudiced

the defense, which ‗requires showing that counsel‘s errors were so serious as to
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deprive the defendant of a fair trial, a trial whose result is reliable.‘‖ In re H.R.M.,

209 S.W.3d 105, 111 (Tex. 2006) (quoting M.S., 115 S.W.3d at 545); see

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

Family code section 263.405(b) provides that an appellant in a parental

termination proceeding must, within fifteen days of the final termination order, file

a motion for new trial or a statement of points for appeal if an appeal is sought.

See Tex. Fam. Code Ann. § 263.405(b). Further, family code section 263.405(i)

prohibits an appellate court from considering ―any issue that was not specifically

presented to the trial court in a timely filed statement of points . . . or in a

statement [of points] combined with a motion for new trial.‖ Id. § 263.405(i); see

In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010) (―The court of appeals may not

address an issue that is not included in a timely filed statement of points.‖).

It is undisputed that Appellant was indigent but unrepresented by counsel

during the fifteen-day period following entry of the final order of termination.

However, the trial court did eventually appoint appellate counsel for Appellant.

Moreover, we granted Appellant‘s motion on appeal for supplemental briefing

and ordered that we would treat the complaints in her appellate brief as a

sufficient statement of points for appeal. Thus, although Appellant was denied

appointed counsel during the fifteen-day period following the final order of

termination, Appellant has had the opportunity, with the assistance of appointed

appellate counsel, to fully present and brief any issues she wished to pursue on

appeal. Although the trial court should have promptly appointed appellate

counsel for Appellant when it permitted her trial counsel to withdraw, Appellant
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has not established that she was prejudiced by the trial court‘s failure to timely

appoint appellate counsel. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)

(holding appellant ―failed to demonstrate that her counsel‘s performance

prejudiced her defense‖). We therefore overrule the first issue in Appellant‘s

initial brief.

C. Legal Sufficiency of the Evidence

In the second issue of her supplemental brief, Appellant contends that the

evidence is legally insufficient to support the trial court‘s endangerment findings

―because the only evidence of child endangerment are conclusory statements by

two ongoing case workers.‖6

1. Standard of Review

A parent‘s rights to ―the companionship, care, custody, and management‖

of his or her children are constitutional interests ―far more precious than any

property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,

1397 (1982); M.S., 115 S.W.3d at 547. ―While parental rights are of

constitutional magnitude, they are not absolute. Just as it is imperative for courts

to recognize the constitutional underpinnings of the parent-child relationship, it is

also essential that emotional and physical interests of the child not be sacrificed

6
Appellant‘s supplemental brief sets forth the standards for reviewing the
legal and factual sufficiency of the evidence, but she states her second issue as
challenging only the legal sufficiency of the evidence, her argument section does
not contain argument concerning the factual sufficiency of the evidence, and she
seeks only reversal and rendition. Thus, we do not address whether the
evidence is factually insufficient to support the trial court‘s endangerment
findings.

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merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a

termination case, the State seeks not just to limit parental rights but to erase

them permanently—to divest the parent and child of all legal rights, privileges,

duties, and powers normally existing between them, except for the child‘s right to

inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and

strictly construe involuntary termination statutes in favor of the parent. Holick,

685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort Worth

2009, no pet.).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a). Evidence is clear and

convincing if it ―will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.‖ Id. §

101.007 (Vernon 2008). Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243

S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven. In re J.P.B., 180 S.W.3d at 573. We review all the evidence in the light

most favorable to the finding and judgment. Id. We resolve any disputed facts in
9
favor of the finding if a reasonable factfinder could have done so. Id. We

disregard all evidence that a reasonable factfinder could have disbelieved. Id.

We consider undisputed evidence even if it is contrary to the finding. Id. That is,

we consider evidence favorable to termination if a reasonable factfinder could,

and we disregard contrary evidence unless a reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance and

demeanor of the witnesses, for that is the factfinder‘s province. Id. at 573, 574.

And even when credibility issues appear in the appellate record, we defer to the

factfinder‘s determinations as long as they are not unreasonable. Id. at 573.

2. Applicable Law

Endangerment means to expose to loss or injury, to jeopardize. Tex. Dep’t

of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G., 121

S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re M.C., 917

S.W.2d 268, 269 (Tex. 1996). Under section 161.001(1)(E), the relevant inquiry

is whether evidence exists that the endangerment of the child‘s physical well-

being was the direct result of Appellant‘s conduct, including acts, omissions, or

failures to act. See J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. §

161.001(1)(E). Additionally, termination under subsection (E) must be based on

more than a single act or omission; the statute requires a voluntary, deliberate,

and conscious course of conduct by the parent. J.T.G., 121 S.W.3d at 125; see

Tex. Fam. Code Ann. § 161.001(1)(E). It is not necessary, however, that the

parent‘s conduct be directed at the child or that the child actually suffer injury.

Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the
10
child‘s well-being may be inferred from parental misconduct standing alone.

Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort

Worth 2004, pet. denied). Moreover, a parent‘s mental state may be considered

in determining whether a child is endangered if that mental state allows the

parent to engage in conduct that jeopardizes the physical or emotional well-being

of the child. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.]

2003, no pet.). To determine whether termination is necessary, courts may look

to parental conduct occurring both before and after the child‘s birth. In re D.M.,

58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).

3. Discussion

The evidence is legally sufficient to support the trial court‘s finding that

Appellant ―engaged in conduct or knowingly placed [M.E.-M.N.] with persons who

engaged in conduct which endangered [M.E.-M.N.‘s] physical or emotional well-

being.‖ See Tex. Fam. Code Ann. § 161.001(1)(E). The Department filed this

case after receiving a referral alleging that Appellant was found passed out in her

car at the methadone clinic while M.E.-M.N. was present. Appellant testified and

denied the incident, but she subsequently acknowledged that she was

withdrawing from hydrocodone when she went to the methadone clinic and

testified that she had pneumonia and suffered from an overdose of a mixture of

antibiotic and methadone. Appellant further testified that she had been going to

the clinic for opiate addiction for five and one-half years, but she admitted that

she had not been there for more than a year before trial, had not received drug

treatment since that time, and had four positive drug tests during the pendency of
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the case. Appellant denied ever using cocaine or methamphetamines but could

not explain why she had tested positive for both (as well as other drugs) in April

and May 2008. In addition, both she and M.E.-M.N. tested positive for cocaine at

the beginning of the case in May 2008, which was the basis, she believed, for

M.E.-M.N. being taken by the Department. Further, the man with whom

Appellant and M.E.-M.N. lived at the beginning of the case also admitted having

a problem with cocaine.

Appellant acknowledged that she also struggled with an addiction to

Xanax; pleaded no contest in 1999 to felony prescription fraud; refused to take a

drug test in January 2009;7 and made numerous visits to a hospital emergency

room during the pendency of the case for relatively minor conditions, receiving

pain medication on most of those visits.8 After this case was filed, Appellant was

indicted for endangerment of her child (arising out of M.E.-M.N.‘s exposure to

cocaine), and she received deferred adjudication after pleading no contest.

Appellant subsequently had her bond revoked on the prescription fraud charge

and was jailed, during which time her services were abated, and she was unable

to schedule them until the middle of August prior to trial in September 2009.

Appellant testified that, although she had neither sought nor received

treatment for her addictions while this case was pending, she and her probation

7
The trial court may infer from a refusal to take a drug test that Appellant
was using drugs. See J.T.G., 121 S.W.3d at 131.
8
Appellant denied seeking pain medication from healthcare providers when
she was unable to get a ―fix‖ on the street.

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officer were working on placing her in outpatient treatment. Further, Appellant

admitted that she did not appear for her psychological examination, did not

attend parenting classes, did not attend counseling, and did not complete her

drug and alcohol assessment. The only evidence of employment was

Appellant‘s testimony that she was employed part-time as a caretaker of an

elderly woman, but she admitted that her caretaker‘s license had expired. She

also conceded that she does not have stable housing. In general, Appellant

conceded in her own testimony that she had ―not done nearly enough‖ to show

the court that she could provide a safe environment for her child. She said she

had followed the advice of her previous attorney in the beginning and had not

started working her services because her prior attorney wanted them done as he

requested them.

Finally, Appellant‘s mother testified that she had successfully petitioned for

termination of Appellant‘s parental rights to her two oldest children because of

Appellant‘s addiction to painkillers.9 Except for calls from Appellant on the older

children‘s birthdays, Appellant‘s mother has no contact with Appellant or M.E.-

9
Appellant initially agreed to give her mother custody of Appellant‘s two
oldest children. Appellant lived in her mother‘s home for a while and attended
outpatient treatment, but she did not obey the facility‘s rules. Appellant‘s mother
testified that she subsequently petitioned the court for termination of Appellant‘s
parental rights after having custody of the children for five years because she
believed that Appellant was not going to get treatment for her addiction and that
the children needed permanency. In that case, Appellant had counsel and fought
the termination of her rights, but she did not follow the requirements of getting
treatment, establishing a residence, or maintaining employment.

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M.N., and Appellant‘s mother does not know where Appellant lives, who her

friends are, or where she works.

Stability and permanence are paramount in the upbringing of children.

See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied).

Drug use and its effect on a parent‘s ability to parent may establish an

endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009);

R.W., 129 S.W.3d at 739; Dupree v. Tex. Dep’t of Protective & Regulatory

Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ). Further, ―[a]

parent‘s decision to engage in illegal drug use during the pendency of a

termination suit, when the parent is at risk of losing a child, supports a finding

that the parent engaged in conduct that endangered the child‘s physical or

emotional well-being.‖ In re J.A.G., No. 02-10-00002-CV, 2010 WL 4539442, at

*1 (Tex. App.—Fort Worth Nov. 10, 2010, no pet.) (mem. op.) (quoting In re J.W.,

No. 02-08-00211-CV, 2009 WL 806865, at *4 (Tex. App.—Fort Worth Mar. 26,

2009, no pet.) (mem. op.)). Even assuming, as Appellant contends, that the

caseworkers‘ testimonies were conclusory, there was ample additional evidence

in the form of Appellant‘s own testimony and that of her mother that supports the

trial court‘s endangerment finding.

Viewing all the evidence in the light most favorable to the termination

judgment, and disregarding all contrary evidence that a reasonable fact finder

could disregard, we hold that the evidence is legally sufficient to support a fact

finder‘s firm conviction or belief that Appellant engaged in conduct that

endangered M.E.-M.N.‘s physical or emotional well-being. See Tex. Fam. Code
14
Ann. § 161.001(1)(E); J.P.B., 180 S.W.3d at 573; In re S.G.S., 130 S.W.3d 223,

238 (Tex. App.—Beaumont 2004, no pet.). Because the evidence is legally

sufficient to support the trial court‘s section 161.001(1)(E) finding, we need not

address whether the evidence is also legally sufficient to support the trial court‘s

section 161.001(1)(D) finding. See In re E.M.N., 221 S.W.3d 815, 821 (Tex.

App.—Fort Worth 2007, no pet.) (stating that a finding of only one ground alleged

under section 161.001(1) is sufficient to support a judgment of termination). We

overrule the second issue in Appellant‘s supplemental brief.

V. Conclusion

Having held that the trial court did not have jurisdiction on May 6, 2010, to

find Appellant‘s appeal frivolous, and having overruled Appellant‘s remaining

issues, we affirm the trial court‘s order terminating Appellant‘s parental rights to

M.E.-M.N.

ANNE GARDNER
JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: May 26, 2011

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