in the Interest of C.D. and K.D., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-10-00070-CV

IN THE INTEREST OF C.D. AND
K.D., CHILDREN

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1
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Appellants M.D. (Mother) and J.D. (Father) appeal the termination of their

parental rights to their children C.D. (Caitlin) and K.D. (Kristen).2 Appellant A.A.

(Grandmother)3 appeals the termination of her permanent managing

1
See Tex. R. App. P. 47.4.
2
We use aliases for all of the children and all foster parents and adoptive
parents throughout this opinion. See Tex. R. App. P. 9.8(b)(2).
3
Grandmother is the biological grandmother of Mother and adopted Mother
when she was born. She is therefore both the grandmother and great-
grandmother of the children.
conservatorship of Caitlin and Kristen. A jury found by clear and convincing

evidence that Mother and Father had (1) knowingly placed or knowingly allowed

the children to remain in conditions or surroundings that endangered their

physical or emotional well-being and (2) engaged in conduct or knowingly placed

the children with persons who engaged in conduct that endangers the children’s

physical or emotional well-being; that Mother constructively abandoned the

children; and that termination of the parent-child relationship would be in the

children’s best interest. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (2)

(Vernon Supp. 2010). The jury also found that the children’s current foster

parents (the Sullivans) should be their permanent managing conservators.

In four issues, Father challenges the legal and factual sufficiency of the

evidence supporting the jury’s endangerment findings. In six issues, Mother

challenges the legal and factual sufficiency of the evidence supporting the jury’s

endangerment findings and the finding that Mother constructively abandoned the

children. Neither Mother nor Father challenges the jury’s finding that it would be

in the children’s best interest to be placed with the Sullivans.

Grandmother challenges the trial court’s order terminating her

conservatorship; the trial court’s failure to submit a jury question on whether

Grandmother should be named as possessory conservator; the trial court’s

denial of her motion to strike the intervention of the Sullivans; and the termination

of the parent-child relationship of both Mother and Father. Grandmother’s

submission on appeal is one paragraph containing no legal authorities or

2
argument on her issues. While we note that Grandmother prepared her brief

without the assistance of counsel, we also recognize that pro se litigants must

abide by the same standards as licensed attorneys and comply with applicable

laws and rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.

2005) (stating that pro se litigants ―are not exempt from the rules of procedure‖

and suggesting that ―[h]aving two sets of rules—a strict set for attorneys and a

lenient set for pro se parties—might encourage litigants to discard their valuable

right to the advice and assistance of counsel‖); Mansfield State Bank v. Cohn,

573 S.W.2d 181, 185 (Tex. 1978) (―Litigants who represent themselves must

comply with the applicable procedural rules, or else they would be given an unfair

advantage over litigants represented by counsel.‖).

Texas Rule of Appellate Procedure 38.1(i) states that an appellant's ―brief

must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.‖ Tex. R. App. P. 38.1(i).

Furthermore, as a general rule, an appellate court will not consider an issue

raised by an appellant where the appellant fails to provide any legal argument to

support his claim. See Hamilton v. Williams, 298 S.W.3d 334, 337 (Tex. App.—

Fort Worth 2009, pet. denied). This is so because an issue unsupported by

citation to any legal authority presents nothing for the court to review. AMX

Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 525 (Tex. App.—Fort

Worth 2009, no pet.) (citing Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678

(Tex. App.—Dallas 2004, pet. denied (2005)). Grandmother has failed to

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adequately brief her issues and to preserve her complaints. We therefore

overrule all of Grandmother’s issues. We address Mother’s and Father’s issues

below.

I. Factual and Procedural Background

Mother was first married in 1999 when she was sixteen years old.

Mother’s first child, Christopher, was born in 2002. Grandmother testified that

she took care of Christopher because Mother ―was not a responsible mother.‖

Child Protective Services (CPS) removed Christopher because Mother’s brother,

John, called them to report that Mother had put Christopher (then two or three

months old) in the front seat of her car and ―fishtailed‖ out of a driveway. John

and his wife Brenda took conservatorship of Christopher. Mother voluntarily

relinquished her parental rights to Christopher in 2006 because, according to

Grandmother, ―she felt that he had been with them long enough that it wasn’t

right to even try to get him back.‖

Mother remarried and had her second child, Katrina, in 2004. About nine

days after Katrina was born, Mother dropped her after she had been drinking.

CPS removed Katrina and placed her with Brenda and John. Also in 2004,

Mother moved to Arkansas and passed two stolen checks with a total value of

$610. She was placed on probation for four years. Mother’s parental rights to

Katrina were terminated in 2007 and John and Brenda adopted Katrina in 2008.

John and Brenda were also in the process of adopting Christopher when John

died.

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 Mother was pregnant with Caitlin when she met Father in 2005.4 Father,

who was twenty-eight years old at trial, started taking drugs at age fourteen or

fifteen. By age sixteen, he was doing methamphetamines and LSD. His first

arrest was at age twenty-two for forgery. At the time of trial, Father had been

convicted of ten felonies.

Caitlin was born in January 2006. Between February 2006 and May 2007,

Mother also passed approximately twenty-three bad checks with a total value of

$4,925.48. In April 2007, Mother stole Grandmother’s debit card and used it to

make $2,071.84 in unauthorized purchases.

Kristen was born in January 2007. The hospital kept Kristen for about ten

days to treat her for strep. Before Kristen was released to go home, Mother and

Father were arrested. Their roommate had reported to the police that Father had

been ―up for a week on drugs‖ and had threatened to beat her up. Police found

nine baggies of marijuana, which Father admitted to smoking with Mother, and a

digital scale. Father also admitted that he used a pipe found in the bathroom for

smoking methamphetamine. Father was convicted of the possession of a

controlled substance and drug paraphernalia, and sentenced to five years and

released on parole after ten months. The possession charges against Mother

were dropped, but she went to prison for the fraudulent use of Grandmother’s

4
Father is not Caitlin’s biological father. He is the adjudicated father and is
listed as her father on her birth certificate. Mother’s ex-husband, J.I., Caitlin’s
presumed father, and J.D.C., Caitlin’s alleged father, both had appointed counsel
below and were both dismissed from the suit in an agreed order.

5
debit card and the violation of Arkansas’s Hot Check Law. See Ark. Code Ann.

§ 5-37-302 (2010). Her probation for her first hot check violation in 2004 was

also revoked. An Arkansas court gave Grandmother temporary possessory

conservatorship of Caitlin and Kristen after the parents were arrested. She

returned to Texas with the children.

Mother was released in April 2008 and came to Texas to live with

Grandmother. Mother got a job but quit after about a month. Instead of paying

child support to Grandmother as ordered by the Arkansas court, Mother used the

money she earned to move back to Arkansas to be with Father, leaving the kids

with Grandmother in Texas. Grandmother testified that Mother stole some of her

checks when she left.

In July 2008, Grandmother was arrested after leaving the children in a car

while she went into a grocery store. The children were taken into custody by

CPS and CPS filed a petition to terminate Mother and Father’s parental rights. A

hearing was held in August 2008, which both Mother and Father attended, but

they were unable to take the children back because of ―financial issues.‖ The

children were placed in an emergency shelter and three successive foster homes

before finally being placed with the Sullivans.5

In September 2008, Father was arrested for possession. He was found

with .3 grams of methamphetamine, ten grams of marijuana, one tablet of

5
The Sullivans are Brenda’s sister and brother-in-law. Brenda is Mother’s
deceased brother’s wife.

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hydrocodone, and twenty-four tablets of alprazolam. He was convicted of

possession of a controlled substance and sentenced to five years in prison. In

October 2008, Mother was not living at a stable address, which was a violation of

her parole, and she also returned to prison.

In January 2009, CPS filed a permanency plan with the trial court in which

it stated that it was in the children’s best interest that the Sullivans be granted

permanent possessory conservatorship. The termination trial was held in

January 2010. Father, who was released on parole, and Grandmother attended,

and Mother, who was still incarcerated in Arkansas, appeared by counsel. The

jury found that Mother and Father’s parental rights should be terminated under

section 161.001 of the family code and awarded permanent possessory

conservatorship to the Sullivans. This appeal followed.

II. Legal and Factual Sufficiency

Both Mother and Father complain that the evidence presented at trial is

legally and factually insufficient to support the trial court’s termination of their

parental rights under section 161.001 of the family code.

CPS argues that because Mother did not file a motion for new trial in the

trial court, Mother failed to preserve her factual sufficiency challenge. The family

code states that an issue is preserved through ―a timely filed statement of the

points on which the party intends to appeal or in a statement combined with a

motion for new trial.‖ See Tex. Fam. Code. Ann. § 263.405(i) (Vernon 2008).

However, the rules of civil procedure also require a motion for new trial to

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preserve factual insufficiency complaints in jury trials. Tex. R. Civ. P. 324(b)(2);

see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (applying Rule 324 to

termination cases). Mother timely filed a statement of points, which addressed

both her legal and factual sufficiency challenge, but she did not file a motion for

new trial. Thus, she has not preserved her factual sufficiency challenge. We

overrule Mother’s second, fourth, and sixth issues. We will review only her legal

sufficiency challenge below. See Tex. R. Civ. P. 324.

A. Standards 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

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,

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685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth

2008, no pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163

S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may

not be based solely on the best interest of the child as determined by the trier of

fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In

this case, the State alleged proof under subsections (D) and (E) of section

161.001 of the family code as to Father, and subsections (D), (E), and (N) as to

Mother. Sections (D) and (E) state that the court may order termination of the

parent-child relationship if the court finds that the parent has either ―knowingly

placed or knowingly allowed the child to remain in conditions or surroundings

which endanger the physical or emotional well-being of the child‖ or ―engaged in

conduct or knowingly placed the child with persons who engaged in conduct

which endangers the physical or emotional well-being of the child.‖ Tex. Fam.

Code Ann. § 161.001(1)(D), (E). Section (N) allows for termination if the parent

has constructively abandoned the child. Id. § 161.001(1)(N).

Termination decisions must be supported by clear and convincing

evidence. Id. § 161.001; see id. § 161.206(a) (Vernon 2008). Evidence is clear

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

9
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 reviewing the evidence for legal sufficiency in parental termination

cases, we must 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 570, 573 (Tex. 2005). We must review all the

evidence in the light most favorable to the finding and judgment. Id. This means

that we must assume that the factfinder resolved any disputed facts in favor of its

finding if a reasonable factfinder could have done so. Id. We must also

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

We must consider, however, undisputed evidence even if it is contrary to the

finding. Id. That is, we must consider evidence favorable to termination if a

reasonable factfinder could, and disregard contrary evidence unless a

reasonable factfinder could not. Id.

We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But 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

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appellate record, we must defer to the factfinder’s determinations as long as they

are not unreasonable. Id. at 573.

In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our own.

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on

the entire record, a factfinder could reasonably form a firm conviction or belief

that the parents violated subsection (D), (E), or (N) of section 161.001(1). Tex.

Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. 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 in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

―Endanger‖ means to expose to loss or injury, to jeopardize. Boyd, 727

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). Under (E), the relevant inquiry is whether evidence exists that the

endangerment of the children’s physical well-being was the direct result of the

parents’ 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 (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 parents’ conduct be directed at the children

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or that the children actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121

S.W.3d at 125. The specific danger to the children’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). To determine

whether termination is necessary, courts may look to parental conduct occurring

both before and after the children’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex.

App.—Fort Worth 2001, no pet.).

B. Sufficient Evidence Supports Termination Under Section 161.001(E)

We hold that legally and factually sufficient evidence supports the jury

finding that Father engaged in conduct that endangered the children’s physical

well-being and that legally sufficient evidence supports the jury finding that

Mother engaged in conduct that endangered the children’s physical well-being.

Neither parent has ever paid child support or otherwise contributed money

for the children’s care. After her release in 2008, Mother did not put her children

first by staying with Grandmother in Texas and earning money to pay for her

children’s care. Instead what money Mother did make she used to move back to

Arkansas to be with Father, leaving the children with Grandmother in Texas.

Mother also stole some of Grandmother’s checks when she left, with full

knowledge that Grandmother was using her own money to support the children.

Neither parent has provided stable and sufficient housing for the children.

Instead of staying at Grandmother’s home with her children, Mother returned to

Arkansas to be with Father. They were evicted from their home because they

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could not pay their rent and Mother was homeless a few months later, thereby

violating her parole. Father testified at trial that he was unable to provide the

children with a stable home because he had only recently been released from

prison. He said, ―At this time I don’t think it is wise for me to have possession of

my kids because of the fact that I don’t have a stable home to put them in, and I

believe that’s important.‖

Both parents have had life-long battles with drug addiction. There was

testimony that Mother was addicted to cocaine and methamphetamine and that

she smoked marijuana. Father testified to using marijuana, LSD, cocaine, and

methamphetamine. Although Father testified that he is currently not addicted to

drugs, he admitted that he had previously discontinued using drugs during

Mother’s pregnancy but began using again right after Kristen’s birth. The drugs

were found in the bedroom that Mother and Father shared with Caitlin.

Drug use and its effect on a parent's life and his ability to parent may

establish an endangering course of conduct. In re R.W., 129 S.W.3d 732, 739

(Tex. App.—Fort Worth 2004, pet. denied). Likewise, evidence of criminal

conduct, convictions, and imprisonment prior to the birth of a child will support a

finding that a parent engaged in a course of conduct that endangered the child's

well-being. J.T.G., 121 S.W.3d at 133. While imprisonment alone does not

constitute a continuing course of conduct that endangers the physical or

emotional well-being of a child, it is a fact properly considered on the issue of

endangerment. Boyd, 727 S.W.2d at 533–34. The State need not show

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incarceration was a result of a course of conduct endangering the child; it need

only show incarceration was part of a course of conduct endangering the child.

Id. Thus, if the evidence, including imprisonment, proves a course of conduct

that has the effect of endangering the child, the requirement of showing that the

endangerment of the child’s physical or emotional well-being was the direct result

of the parent’s conduct is met. Id.

Mother has been imprisoned three times. Mother was arrested for the third

time only days after giving birth to Kristen and before Kristen was even released

from the hospital. At the time of trial, Father was twenty-eight years old and had

been convicted of ten felonies. Mother and Father’s incarceration had affected

their ability to ensure that their children were properly taken care of and indicated

a course of conduct that was endangering to the children. Moreover, both

parents’ incarcerations prevented them from finding better living conditions and

financially supporting the children. The evidence showed that Mother and

Father’s continued criminality had contributed to the dangerous environment in

which the children had lived. See In re M.R., 243 S.W.3d 807, 819 (Tex. App.—

Fort Worth 2007, no pet.) (observing that father’s incarceration affected his ability

to ensure that his child was properly taken care of, prevented him from finding

better living conditions or providing financial support for the child, and indicated a

course of conduct that was endangering to his child). Each parent repeatedly

committed criminal acts that subjected them to the possibility of incarceration.

While imprisonment alone is not a basis to terminate parental rights, it is an

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appropriate factor to consider. See In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.

App.—Fort Worth 2009, no pet.). Each time these parents were jailed, they were

absent from their children’s lives and unable to provide a home or support, which

negatively impacted the children’s living environment and well-being. Id.; see

D.M., 58 S.W.3d at 812–13 (noting that mother’s frequent incarcerations affected

her ability to properly care for her children); M.R., 243 S.W.3d at 819; In re

C.L.C., 119 S.W.3d 382, 393 (Tex. App.—Tyler 2003, no pet.) (holding that it is

sufficient that the parent was aware of the potential for danger to the child and

disregarded that risk); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied) (holding that the creation of an ―emotional vacuum‖

in the child's life by being absent for more than twelve months due to

incarceration was evidence of endangering the child’s emotional well-being).

Mother could have been released in time to attend the termination hearing, but

her frequent misbehavior in prison delayed her release. See In re J.N.R., 982

S.W.2d 137, 143 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (affirming the

termination of father’s parental rights based in part on evidence that father

continued to engage in the criminal activity that resulted in his incarceration even

after knowing his parental rights were in jeopardy). The CASA advocate testified

that CASA changed its plan from reunification to termination when it discovered

that the parents had misbehaved in prison so to as extend their confinement.

The advocate said, ―[W]e were coming on nine months, they were still

15
incarcerated. I had learned they had done some things to make their

incarceration even longer.‖

There was much testimony regarding Mother’s selfish nature, that she’s

―too prone to care about what [she] wants instead of . . . what’s the best thing.‖

Grandmother stated that she did not think Mother showed respect for the process

of getting her children back. Brenda, the guardian of Mother’s oldest child and

adoptive parent of Mother’s second child, testified that she doesn’t believe

Mother will ever be an effective parent. Brenda testified that Mother told CPS

that Brenda had ―kidnapped‖ the children that Brenda has custody of. Mother

also alleged that Brenda had sexually assaulted Katrina when she was eight

months old. Brenda testified that the accusations were unfounded and she was

never charged for anything. Grandmother stated that the children receive no

benefit from having Mother or Father in their life at the moment. As of the date of

trial, Grandmother’s husband (Grandfather) did not think Mother was able to

raise her children. Grandmother testified that she thought Father was a good

father, but admitted that he had only been present in Caitlin’s life for the first

year. She also described him as being a selfish person who makes bad

decisions. Grandfather thought that Father was maturing, but as of the date of

trial, he was still unable to take the children.

We hold there is legally and factually sufficient evidence that Father

endangered the children’s physical well-being and that there is legally sufficient

evidence that Mother endangered the children’s physical well-being. We

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overrule Father’s third and fourth issues and Mother’s third issue. Because,

along with a best interest finding, a finding of only one ground alleged under

section 161.001(1) is necessary to support a judgment of termination, we need

not address Mother and Father’s remaining issues. See Tex. R. App. P. 47.1;

see also In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no

pet.); In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth 2007, no pet.).

III. Conclusion

Having overruled all of the appellants’ dispositive issues, we affirm the trial

court’s judgment.

LEE GABRIEL
JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: May 5, 2011

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