ACCEPTED
01-14-00801-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/4/2015 2:55:07 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00798-CV
NO. 01-14-00801-CV
_________________________________________________________
FILED IN -
1st COURT OF--APPEALS
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HOUSTON, -
--- PTEXAS
IN THE COURT OF APPEALS - - ---- CA ------
1/4/2015- 2:55:07
- ID --PM
---- VO ------
FOR THE FIRST JUDICIAL DISTRICTCHRISTOPHER -- A. PRINE
----
--Clerk
OF TEXAS AT HOUSTON - -
_________________________________________________________
IN THE INTEREST OF A.A.M., J.M. and I.L.M., Children
FILED IN
_________________________________________________________
1st COURT OF APPEALS
HOUSTON, TEXAS
1/5/2015 8:00:00 AM
A.J.M., Appellant
CHRISTOPHER A. PRINE
Clerk
v.
TEXAS DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES, Appellee
_________________________________________________________
APPEALED FROM THE 314TH
DISTRICT COURT OF HARRIS COUNTY, TEXAS
Trial Court Cause Nos. 2011-00219J, 2012-00305J & 2013-04476J
________________________________________________________
ORIGINAL BRIEF OF APPELLANT A.J.M.
____________________________________________________________
WILLIAM M. THURSLAND
TBN 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
713-655-0200; Fax: (713) 655-9035
Email: wmthursland@hotmail.com
ATTORNEY FOR APPELLANT, A.J.M.
ORAL ARGUMENT IS REQUESTED
[IF DEEMED NECESSARY]
IDENTIFICATION OF PARTIES AND COUNSEL
Appellant herein states that the names of all parties and counsel to this
appeal are:
A.J.M., Appellant:
At Trial On Appeal:
J.B. Lee Bobbitt William M. Thursland
Attorney At Law Attorney At Law
TBN: 24078237 TBN 20016200
405 Main St., Ste. 620 440 Louisiana St., Ste. 1130
Houston, TX 77002 Houston, TX 77002
Tel: 713-529-6234 Tel: 713-655-0200 x 107
Fax: 281-476-7816 Fax: 713-655-9035
The Texas Department of Family and Protective Services, Appellee:
At Trial: On Appeal:
Marc A. Ritter Sandra D. Hachem
Assistant County Attorney Sr. Assistant Harris County Attorney
TBN 16951500 TBN 08620460
1019 Congress, 16th Fl 1019 Congress, 16th Fl
Houston, TX 77002 Houston, TX 77002
Tel: 713-274-5246 Tel: 713-578-3900
Fax: 713-437-4700 Fax: 713-437-4700
Children A.A.M. & J.M.at Trial: Child I.L.M., at Trial:
Juliane Crow John Mallard
Attorney at Law Attorney At Law
TBN 24000653 TBN: 14052700
P.O. Box 10152 1 Sugar Creek Ctr. Ste. 925
Houston, TX 77002 Sugar Land, TX 77478
i
Tel: 281-382-1395; Tel: 281-313-6800;
Fax: 713-422-2389 Fax: 888-501-6580
J.L.D., Mother at Trial:
Oliver Sprott, Jr.
Attorney at Law
TBN: 18971700
2323 Caroline, Houston, TX 77004
Tel: 713-659-3056; Fax: 713-659-2812
P.M., I.L.M.’s Managing Conservator, at Trial:
Pro Se
3701 S. Braeswood Blvd. #39, Houston, TX 77031
REQUEST FOR ORAL ARGUMENT
Appellant requests oral argument if deemed necessary.
RECORD REFERENCES
Clerk’s Record:
The Clerk’s Record consists of one (1) volume in each case and is referred
to herein as CR followed by the page number(s).
Reporter’s Record:
The Reporter’s Record in appeal no. 01-14-00798-CV consists of four
volumes. The relevant trial testimony is found in vol. 3 and the exhibits in vol. 4.
The record in appeal no. 01-14-00801-CV consists of eight volumes. The relevant
trial testimony is found in vol. 7 and the exhibits in vol. 8.
The trial testimony in both cases is referred to as (RR), followed by the page
and line number(s). The exhibits are referred to by the party offering same
followed by the exhibit number.
ii
Statutory Citation References:
Unless otherwise indicated, all statutory references made herein refer to the
Texas Family Code.
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL i
REQUEST FOR ORAL ARGUMENT ii
RECORD REFERENCES ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iii
STATEMENT OF THE CASE 1
ISSUE PRESENTED 4
ISSUE ONE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS
UNDER §161.001(1)(E)
ISSUE TWO: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS
UNDER §161.001(1)(O)
STATEMENT OF FACTS 4
SUMMARY OF ARGUMENT 15
ARGUMENT: A. Standard of Review 18
ARGUMENT: B. Applicability of §161.004 20
iii
ARGUMENT: C. Argument & Analysis 25
ISSUE ONE:
Applicable Legal Standard: 26
Relevant Evidence: 28
Argument & Analysis 33
ISSUE TWO:
Applicable Legal Standard: 37
Argument & Analysis 37
PRAYER 39
CERTIFICTE OF COMPLIANCE 40
CERTIFICATE OF SERVICE 40
TABLE OF AUTHORITIES
Federal Cases
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982) 18
State Cases
Avery v. State, 963 S.W.2d 550 (Tex. App.—Houston 27
[1st Dist.] 1997, no writ)
Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013) 35
Holick v. Smith, 685 S.W.2d 18 (Tex. 1985) 18, 16
In re A.S., 261 S.W.3d 76 (Tex. App. - Houston [14th Dist.] 26, 33
2008, pet. denied)
In re D.N., 405 S.W.3d 863 (Tex. App. – Amarillo 2013, no pet.) 22, 26, 37
iv
In re E.N.C., 384 S.W.3d 796 (Tex. 2012) 16, 35, 37
In re G.M., 596 S.W.2d 846 (Tex. 1980) 20
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) 19, 17
In re J.W., 152 S.W.3d 200 (Tex. 2006) 26, 27
In re K.G., 350 S.W.3d 338 (Tex. App. – Ft. Worth 2011, pet. denied) 21
In re S.M.R., 434 S.W.3d 576 (Tex. 2014) 16, 26
Jordan v. Dossy, 325 S.W.3d 700 (Tex. App.—Houston 27
[1st Dist.] 2010, pet. denied)
Ruiz v. the Dept. of Family & Protective Servs., 20
212 S.W.3d 804 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
Tx. Dept. of Hum. Resources v. Boyd, 727 S.W.2d 531 (Tex. 1987) 26
Vasquez v. DFPS, 190 S.W.3d 189 (Tex. App.—Houston 22
[1st Dist.] 2005, pet. denied)
Statutes
Tex. Family Code Ann. § 101.007 19
Tex. Family Code Ann. § 161.001(1) 20, 21, 25
Tex. Family Code Ann. § 161.001(2) 20
Tex. Family Code Ann. § 161.001(1)(E) 26
Tex. Family Code Ann. § 161.001(1)(O) 37
Tex. Family Code Ann. § 161.004 15, 20, 25, 34
Tex. Family Code Ann. § 161.103 21
v
NO. 01-14-00798-CV
NO. 01-14-00801-CV
__________________________________________________________
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
___________________________________________________________
IN THE INTEREST OF A.A.M., J.M. and I.L.M., Children
___________________________________________________________
A.J.M., Appellant
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
Appellee
_________________________________________________________
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause Nos. 2011-00219J, 2012-00305J & 2013-04476J
_____________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
A.J.M., appellant (also called “father”), respectfully submits her original brief in
the above styled and numbered appeal.
STATEMENT OF THE CASE
In regard to trial court no. 2011-00219J (appeal no. 01-14-00798-CV), on January
12, 2011, the Department of Family and Protective Services (“DFPS”) filed its Original
Petition For Protection of a Child, For Conservatorship and Termination in Suit
Affecting the Parent-Child Relationship wherein it requested, inter alia., to be appointed
the temporary managing conservator of A.A.M., a female born on December 16, 2006
1
and J.M., a male born on December 16, 2008. (CR 3-26) The “Decree In Suit Affecting
The Parent-Child Relationship” was signed on March 27, 2012 wherein DFPS was
appointed as the children’s permanent managing conservator; their mother, J.L.D., was
appointed their possessory conservator; and there were no findings as to their alleged
father, A.J.M.1
On January 14, 2014 DFPS filed its Original Motion to Modify a Prior Order,
For Conservatorship and Termination in Suit Affecting the Parent-Child Relationship.
(CR 30-47)
After a bench trial before the Honorable Aneeta Jamal, the court found the
evidence sufficient to support the termination of appellant's parental rights under
§161.001(1)(E) and (O). It also found that termination of his parental rights was in the
children's best interest. DFPS was appointed as their sole managing conservator. On
September 8, 2014 the “Order Modifying a Prior Order and Granting Termination” was
signed. (CR 55-64)
On September 26, 2014, A.J.M. filed his notice of appeal and on September 30,
2014 appellate counsel was appointed. (CR 83-84 & 65)
In regard to trial court nos. 2012-00305J and 2013-04476J (appeal no. 01-14-
00801-CV), it appears that on January 13, 2012 DFPS filed its Original Petition For
Protection of a Child, For Conservatorship and Termination in Suit Affecting the
Parent-Child Relationship wherein it requested, inter alia., to be appointed the
1
The decree was not included in the clerk’s record. It was however admitted into evidence as DFPS
exhibit no. 4.
2
temporary managing conservator of I.L.M., a male born on December 13, 2011.2
On December 20, 2012 the “Agreed Final Decree in Suit Affecting the Parent-
Child Relationship” was signed in cause no. 2012-00305J wherein P.M. was appointed
as the child’s sole managing; A.J.M. was established as his father; and he and the mother
were appointed as possessory conservators. (CR 87-97)
On August 5, 2013, DFPS filed its Original Petition For Protection of a Child,
For Conservatorship and Termination in Suit Affecting the Parent-Child Relationship in
cause no. 2013-04476J wherein it requested, inter alia., to be appointed again as the
child’s temporary managing conservator (CR 4-27)
The case was tried with its companion case to the court. On September 8, 2014
the “Order Modifying a Prior Order and Granting Termination” in cause no. 2013-
04476J was signed wherein the court found the evidence sufficient to support the
termination of appellant's parental rights under §161.001(1)(E) and (O). It also found
that termination of his parental rights was in the child's best interest. DFPS was
appointed as the child's sole managing conservator. (CR 87-97)
On September 26, 2014, A.J.M. filed his notice of appeal and on September 30,
2014 appellate counsel was appointed.3 (CR 114-115 & 99)
2
This pleading was not included in the clerk’s record. However, the affidavit supporting DFPS’s
request to be appointed I.L.M.’s temporary managing conservator January 13, 2012 is included in
the reporter’s record. (DFPS #9) Appellant has requested that the record be supplemented.
3
The mother, J.L.D., has not appealed in either case.
3
ISSUES PRESENTED
ISSUE ONE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(E)
ISSUE TWO: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(O)
STATEMENT OF FACTS
The trial began on August 21, 2014. The first witness, Bruce Jeffries (“Jeffries”),
testified that he is an employee and the custodian of records of National Screening
Center (“NSC). DFPS offered the drug test results of the mother, J.L.D., and father,
marked as exhibits nos. 16 and 17, respectively, as NSC business records. Appellant
timely objected by noting that Jeffries is not an expert; did not conduct the drug tests
himself; and has no personal or expert knowledge of the testing that was conducted. The
objection was overruled and the documents admitted. (RR p. 7 – 10 & p. 11; L. 1-4)
After reviewing mother’s drug tests Jeffries opined that in the beginning her drug
of choice was Xanax and marihuana. Then she “got off” marihuana but “cocaine still
seems to be coming back and forth into the picture.” (RR p. 20-21)
Jeffries testified NSC first saw appellant was on January 25, 2011 when hair and
urine specimens were collected. The urine test detected Xanax in “therapeutic levels . . .
if there’s a prescription.” The tests also revealed chronic marihuana use and “more than
4
one-time” but not chronic cocaine use. The next specimens were collected on
November 5, 2011. They showed the cocaine use went up and the alcohol test was
negative. NSC ran an “ingestion hair test” on January 24, 2012 that showed “cocaine at
4. 051 picograms” and marihuana at 1.0. On March 13, 2012 a UA and hair test were
done which revealed that marihuana use was still “heavy” and cocaine was “at 2,119
picograms.” (RR p. 22-24)
The May 22, 2012 ingestion hair test showed cocaine at 2127 picograms, which
was relatively the same as the prior test. A similar test done on September 4, 2012
indicated “cocaine metabolite of 1137.” (RR p. 25-26)
The March 15, 2013 UA test was “clear” although it produced a “positive alcohol
result “at 1,060 nanograms” that was “nothing” to be concerned about. The “outside”
hair follicle did not show “anything” but the “inside” showed cocaine at 2,016. The
May 17, 2013 UA was clear and the zero tolerance test was negative for both the outside
and inside. No alcohol use was detected. The June 17, 2013 UA test was clean. (RR p.
27)
On August 20, 2013 NSC ran an extended opiate urine test that did not detect any
“metabolites” or alcohol. Nor were any metabolites detected on the inside of the hair.
The exposure and ingestion test picked up “cocaine at 9,460 and the outside showed” he
was around marihuana. The October 1, 2013 tests were negative for opiates and alcohol
but showed cocaine at 2,248 and marihuana at the “cutoff,” .1. The ingestion test found
cocaine at 2,713 “on the inside of his body” and exposure to marihuana at 34.8. (RR p.
5
27; L. 20-25 & p. 28)
The October 8, 2013 tests were negative for opiates and alcohol. The ingestion
test detected cocaine at 1,967 and the exposure test detected cocaine at 2,647. The
February 4, 2014 urine test did not detect any drugs or alcohol. The ingestion extended
opiate hair test found cocaine at 1,830. The ingestion and exposure test only found
exposure to marihuana but noted the specimen quantity was not sufficient for a complete
analysis for additional drugs.4 (RR p. 28; L. 20-25 & p. 29)
Jeffries opined that even though cocaine shows up on “every test” appellant is
“not a daily user of cocaine” but agreed he used it more than once during the pendency
of the case. When asked by the trial court if cocaine was “still a problem for each
parent,” he answered, the test results are “consistent on low levels . . . it’s not a number
high in the sky; it’s a relatively low number.” Jeffries went on to explain that “nobody”
could tell if the parents used cocaine four or five times. All that can be said is “[t]hey’ve
done it more than one time.” (RR p. 30 & p. 31; L. 1)
Jeffries agreed that no two hairs on a person’s body are alike. He further agreed a
hair taken from one side of the head could yield a positive result while another one taken
from the other side could yield a negative result. Nevertheless, he argued that this could
not have happened in this case because “Quest doesn’t guess. If they produce a report,
they’re liable for it. It can be challenged in court.” (RR p. 39)
Jeffries does not know who touches the samples once he deposits them in the
4
The State later stipulated that the last drug test was done in February 2014. (RR p. 60; L. 12-21)
6
lockbox. However, anyone can order the $250 litigation package that shows the chain of
custody for each test. If the specimen is negative, it is destroyed within seven days. If it
is positive federal guidelines require that it be kept at the laboratory for two years. (RR
p. 41-45)
When asked if obtaining the litigation package would have rendered a more
accurate result Jeffries replied “Quest, a Fortune 100 company . . . is not going to take
the time to do a litigation package on 180,000 specimens a day.” (RR p. 62)
DFPS exhibits 1 through 23 were admitted without objection. (RR p. 73)
DFPS case worker, Jasmine Green (“Green”) testified that A.A.M. is seven, J.M.
is five and I.L.M. is two. They are placed together in a private agency foster home that
is willing to adopt all the children. DFPS filed the motion to modify with respect to
A.A.M. and J.M. because the parents were not making any “progress.” Specifically,
they tested positive for drugs since DFPS was appointed their managing conservator and
they did not do the services outlined in their latest family service plans (“FSP”). (RR p.
73-75)
On September 6, 2013 the FSP’s were created for both parents. Appellant was
asked to provide the agency with proof of income; maintain safe and stable housing;
complete a parenting class; maintain a safe, stable, crime free environment; complete
anger management; maintain contact with the agency; and complete a psychosocial
evaluation and successfully complete individual and family counseling. (RR p. 76)
At this time the two oldest children were placed in a foster home where they had
7
been since August 2012. The youngest was placed with the paternal grandmother, P.M.,
who had previously been granted “PMC of [I.L.M.]” (RR p. 77-78)
In June 2013 P.M. became ill and the child went back into his parents’ care,
which was “not supposed to occur.” The child advocate (“CASA”) volunteer informed
the caseworker that I.L.M. was back with his parents. DFPS “checked on that” and
found it to be true. (RR p. 79 & p. 81) In August 2013 I.L.M. was returned to his
grandmother by the DFPS investigations unit “despite conservatorship telling them [the]
placement may not continue.” After the child was back with P.M., DFPS filed for “a
show cause hearing.” (RR p. 82-83)
After DFPS was appointed I.L.M.’s temporary conservator, he continued to live
with P.M. until March 2014. His placement changed because P.M. continued to have
health problems and was not able to care for him. P.M. did not expressly tell Green she
was unable to take care of the child. Green learned I.L.M. was “given” to a paternal
aunt when P.M. was again hospitalized. On March 29, 2014 Green found him at the
aunt’s house. He was then removed and placed with his siblings in foster care. (RR p.
84-86)
I.L.M. was “grossly behind in his speech skills” when he came into DFPS care.
He has made “extreme progress” in his verbal and social skills” and is currently in
speech and cognitive therapy. He attends daycare where he gets appropriate
socialization and therapy. Due to the structure of the home and daycare he is able to
maintain an appropriate sleep and eating schedule. (RR p. 86; L. 17-25 & p. 87; L. 1-3)
8
A.A.M. and J.M. are bonded with their caregiver and doing well in school. J.M.
is in kindergarten and loves to read. He also wants to resume gymnastics. They have
adjusted well in the foster home. Green requested that both parents’ parental rights be
terminated and that P.M. be removed as I.L.M.’s managing conservator. In regard to
best interests she stated that despite ample time the parents “have not adjusted their
lifestyle” to accommodate raising young children. In addition, they continue to put the
children in danger by exposing them to drug abuse and by failing to provide a stable and
structured environment. (RR p. 87-89)
The trial court noted that the 2012 decree pertaining to A.A.M. and J.M. did not
specify “any specific thing that [DFPS] asked them to do.” 5 The parents who were
appointed possessory conservators under that decree were having supervised visits with
the children at the DFPS office. The visits were appropriate and the parents were
“constantly” visiting until May 2013 when they “dramatically fell off.” They were not
paying child support but would bring things to the visits. The parents were also required
to take “random” drug tests during this period of time. (RR p. 91; L. 19-25 & 92-94)
DFPS stopped the visitations in October 2013 because the parents “went from
May until September without visiting their children” and their excuses “were not adding
up.” A.A.M. and J.M. would wait at the DFPS office and when the parents did not show
up they became angry. “In a way” this caused them to not want to see their parents.
(RR p. 95 & p. 96; L. 1-14)
5
The Court later observed “[t]here’s no findings on him” and he “wasn’t really ordered to do anything
in this decree.” (RR p. 104; L. 10-15)
9
The two oldest children’s “TMC” case concluded in January 2012. I.L.M.’s TMC
case did not concluded until December 2012. DFPS issued a “show cause” in August
2013 which “coincided with the [FSP] . . . in the PMC case for [A.A.M. and J.M.] as
well as in [I.L.M.]’s case.” Between I.L.M.’s case closing and being reopened, the
parents were required “to continue to stay in a AA/NA kind of supportive program”
which they did “sporadically.” (RR p. 96; L. 16-25 & p. 97)
Appellant completed “a court-ordered service regarding drugs in September 2012.
He continued to test positive for drugs after that and did not complete another program.
When A.A.M. and J.M. first came into care in 2011 they were “behaviorally” out of
control and could not be kept in any placement. They went through about five
placements before the current placement was found two years ago. Due to the structure,
they now exhibit appropriate behavior for a five and a seven year old. They are bonded
to the current caregiver. (RR p. 98-100)
In June 2013 Green heard that I.L.M. was no longer in the care of his paternal
grandmother. He was placed back with her in August 2013 and removed from her in
March 2014. (RR p. 101)
When the trial court asked if DNA was done to establish appellant’s paternity to
the two oldest children, DFPS trial counsel responded, “I just found those results in here.
It looks like it was . . . collected on 1/13/12.” Nevertheless, the court pointed out the
“decree doesn’t even indicate he’s the father.” Counsel then stated the “DNA does,
Judge. And it may have to do with lack of service. I don’t know what happened in the
10
first case . . . but he is the Dad.” (RR p. 103; L. 20-25, p. 104; L. 23-24 & p. 105; L. 1-
4)
Appellant visited his children “over the course of 2011” and they know who he is.
However, they do not ask to see him now. (RR p. 105)
It is DFPS policy to place children with family first. In this case they attempted to
comply with the policy but “exhausted” all the family members that from time to time
came to court. Green spoke to the maternal grandmother who was present in court at the
inception of the case. She wanted to have the children placed with her. However, a
home study was not done on her because of an open CPS case involving her daughter
and her criminal history. (RR p. 106-108) Green did not visit the grandmother’s home
and does not know if she’s employed. (RR p. 113)
Quana Smith (“Smith”) the advocacy coordinator testified that in October 2013
CASA became involved in I.L.M.’s case. Her only contact with his parents was in
court. However Smith agreed CASA has “the whole history of this case.” She opined
that it is in I.L.M.’s best interest that the parental rights be terminated because they
“have not been able to prove” they can provide a safe and stable environment; they
continue to “test positive in drugs;” make poor parenting decisions, and had no visit or
contact “with the kids that showed that they were putting [I.L.M.’s] interest as their top
priority.” (RR 115; L. 17-25 & p. 116-117)
Smith has been to the child’s placement and stated he has “made strides” since
being removed from the paternal grandmother. He is now structured; sleeping and
11
talking. He is very bonded with the caregiver and is “being socialized because there was
developmental delays because he spent most of his time under the maternal (sic)
grandmother. Smith was not familiar with the maternal grandmother who appeared at
trial. When CASA was appointed I.L.M. was already placed with P.M. and it felt “that
placement was in his best interest” so they did not explore other relatives. (RR p. 117-
118)
Sandra testified that is the children’s maternal grandmother and resides in Harris
County. She is employed as a journeyman, carpenter/builder for the Local 551 union.
She is divorced and lives with her 17-year-old son. (RR p. 119-120) Sandra has
attended some of the permanency planning reviews and was coming to court until about
a year ago.6 When in court she asked, “to be considered.” (RR 121-122)
A permanency planning participation list dated November 16, 2011 showing
Sandra attended and a letter from the principal of David G. Burnet Elementary were
marked as exhibits and admitted into evidence as Mother’s #2 and #3. She asked that a
home study be done on her home but Green told her the “supervisor didn’t want to look
at [her] and the home.” (RR p. 123-125)
Sandra revealed she had one CPS referral when her fifteen-year-old daughter ran
away in 2011 or 2012. Another occurred seventeen years ago when her eighteen-month-
old twins were walking unaccompanied in the street. (RR p. 126-128) She also revealed
she had two charges involving cocaine. She “signed for four years’ adjudication” and
6
She came to Court on September 13 and “before that 2011, 2012 and 2013.” (RR p. 121; L. 22-25 &
p. 122; L. 1-4)
12
went through the STAR program. She was released in 2010 and has maintained her
sobriety. (RR p. 129-130)
Mother’s exhibits nos. 4-8 were admitted into evidence. They show programs
that Sandra completed while on probation in the 338th court. (RR p. 132-134) On cross-
examination, she recalled a DWI charge from 1999 or 2000. Her criminal record was
admitted into evidence as DFPS #24. (RR p. 136-139)
Sandra contacted placement agencies to help get her grandchildren out of care but
they never “got back” to her. She has not seen the oldest two children since October
2012 although it was not “by choice.” She has never met the attorney ad litem for
A.A.M. and J.M. or introduced herself to her while in Court. On the other hand, she had
“no clue” who this lawyer was “before today” and the lawyer never introduced herself to
Sandra. (RR p. 143-145)
After DFPS rested appellant moved for a directed verdict because “there’s been
no evidence to establish a material change in circumstances.” The motion was denied.
(RR p. 146 & p. 150; L. 5-6)
The mother, J.L.D., testified that P.M., the paternal grandmother, is I.L.M.’s
managing conservator. P.M.’s daughter was in court the morning of trial. She lives
with J.L.D. who told “her” they were going to court that morning but she was unaware
“it was trial.” (RR p. 150-151) She further testified that P.M. lives on Braeswood in
apartment no. 39. A “Notice of Permanency Hearing and Trial Setting” filed on June 2,
2014 was admitted into evidence as Father’s #1. It reflects the notice was mailed to
13
P.M. stated she resided in apartment no. 32 and not no. 39. (RR p. 152-154)
J.L.D. remembers DFPS had a hard time getting the DNA results and that they
came back after the trial. She also has no doubt that appellant is the father of all three
children. (RR p. 154-155) Mother has been clean since March 2011 and agreed that she
was “clean all through 2012.” (RR p. 156 & p. 157; L. 1)
A.J.M. testified his last visit with his children was November 2013. Two weeks
before his December visit Green told him the visits were ending. She “didn’t really”
provide an explanation and he was visiting for “two and a half years straight.” (RR p.
158)
It has not been easy to communicate with DFPS. Several times his phone calls
were not returned. Other times, he showed up for visits but the children were not
available. The last time this happened was in September when he brought pizza for
them. Green said the foster parent could not make it and the parents just had to deal
with it. He began missing visits over a three-month period because he had to watch
I.L.M. when his mother had a stroke. (RR p. 159-160)
When P.M. improved he was going to bring the child back to her after work.
However, while still at work CPS showed up at his house and returned the child to his
grandmother. I.L.M. also stayed with his sister, Sunday, for a week. She has no drug or
criminal history. A.J.M. has been to court at least 30 times and was there at trial asking
the Court to “at least have the status quo.” (RR p. 161-162)
The only change between May and August 2013 was that DFPS separated the
14
parents from the children because P.M. had a stroke. A.J.M.’s life was the same. He
was still going to work and had completed “the services once.” It was hard for him to
do them again because he got a better job with more hours. The only material and
substantive change in the parties’ and the children’s lives was that P.M. suffered a
stroke. (RR p. 163)
At closing, DFPS argued that appellant admitted P.M.’s stroke constituted a
“substantial and material change.” It then asked for termination of all parental rights on
E grounds “due to positive drug tests” and O grounds “for failure to do the service
plans.” (RR p. 165)
Appellant argued against there has been no material or substantial change in the
children’s or his circumstances since the prior orders were entered. (RR p. 167 & p.
169) The childrens’ ad litems argued that appellant continued to engage in criminal
activity and noted the positive drug tests. They also argued that since the latest
pleadings to terminate parental rights were filed the children have been in a stable
environment, which has greatly benefitted them. (RR p. 170-172)
SUMMARY OF THE ARGUMENT
As a preliminary matter the appellate court must decide if §161.004 is applicable
to its sufficiency of he evidence analysis. If not, the scope of its analysis is limited to
the time period between the signing of the prior orders and the date of the trial on
DFPS’s motions to modify. If it is, then the Court may consider evidence that was
presented to the trial court before the entry of the prior orders provided the
15
“circumstances of the children, or other party affected by the order have materially and
substantially changed since the date of the rendition of the order.”
On appeal, appellant argues that §161.004 is not implicated in the Court’s analysis
because DFPS did not plead for termination under that statute in either case. Instead the
live pleading it went to trial on only requested termination on §161.001(1)(A)-(T)
grounds. The Family Code provides at least three independent grounds to involuntarily
terminate a parent’s parental rights. One of those grounds is provided by §161.004.
The Supreme Court recently affirmed the line of cases that have followed this
Court’s Vasquez holding that “termination can only be upheld a ground that was both
pleaded by the party seeking termination and found by the trier of fact.” In re S.M.R.,
434 S.W.3d 576, 581 (Tex. 2014) Therefore, because DFPS did not pled §161.004 as an
independent ground for termination, the relevant evidence supporting the enumerated
predicate grounds should not include evidence that was presented to the trial court prior
to the prior orders.
Nevertheless, whether the Court applies §161.004 or not, the evidence is still
insufficient to support the termination findings under subsections (E) and (O) in both
cases.
It is well established that termination under subsection (E) must be based on
more than a single act or omission and requires a voluntary, deliberate, and conscious
course of conduct by the parent that endangers the child’s physical and emotional well-
being. In re E.N.C., 384 S.W. 3d 796, 803-804 (Tex. 2012)
16
In regard to A.A.M. and J.M. if the scope of the evidence the Court considers is
limited to the time period between March 27, 2012 and August 21, 2014 then there is no
evidence that appellant exposed them to loss or injury or in any way jeopardized them.
During this period they were in DFPS managing conservatorship and A.J.M. only visited
them at the DFPS office. Similarly, at the relevant period I.L.M. was in the managing
conservatorship of his grandmother. While the evidence shows A.J.M. took care of him
for an unspecified period of time when his mother was ill, there is no evidence that
through his conduct the child was endangered.
The scant evidence pertaining to A.A.M. and J.M. before them came into DFPS
temporary conservatorship also fails to support the subsection (E) finding. This
evidence consists primarily of the investigative caseworker Charlotte Yoakum’s
affidavit wherein she noted the children were appropriately dressed and “did not appear
to have any injuries.” She also found on December 31, 2010 the apartment “clean and
neat.”
Likewise the facts pertaining to I.L.M. before he came into DFPS temporary
conservatorship are found in the Tonya Ballard affidavit. He came into care because he
tested positive for marihuana at birth. He never lived with his father. Ballard described
the parents’ home as “very nice and well kept.” While there is evidence that A.J.M. was
using marihuana and possibly cocaine in December 2010 there is no showing how this
fact exposed I.L.M. to danger.
Finally, appellant asserts that there is insufficient evidence to support the required
17
element under §161.001(1)(O) that the children were removed from appellant under
Chapter 262 for the abuse or neglect of the children.
If the relevant time period for A.A.M. and J.M. is limited to between March
27, 2012 and August 21, 2014, there is no evidence that they were removed from
appellant under Chapter 262 for the abuse or neglect inflicted upon them. In fact,
at all relevant times they were in the permanent managing conservatorship of
DFPS. Moreover, there was no evidence that anyone, including appellant, abused
or neglect them during this period.
Similarly, I.L.M. was removed from his managing conservator, P.M., due to her
illness and inability to care for him. Thus, like his siblings, he was also not removed
due to abuse or neglect.
ARGUMENT
A. Standard of Review
The involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) The
natural right existing between a parent and a child is of such a degree as to be of
constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S.Ct. 1388,
1397-98 (1982) As a result, appellate courts strictly scrutinize termination proceedings
and involuntary termination statutes are strictly construed in favor of the parent. Holick
v. Smith, 685 S.W.2d at 20-21
18
Due to the severity and permanency of terminating a parent’s parental rights the
burden of proof is heightened to the clear and convincing evidence standard. In re
J.F.C., 96 S.W.3d 256, 265-266 (Tex. 2002) This standard is defined as “the measure or
degree of proof that 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.” §101.007.
Because of the higher standard of proof the traditional legal and factual standards
of review are inadequate. In conducting a legal sufficiency review a court must consider
all the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a reasonable belief that its finding was true.
Thus it assumes the fact finder resolved disputed facts in favor of its findings if a
reasonable fact finder could do so. A corollary to this requirement is that a court should
disregard all evidence that a reasonable fact finder could have disbelieved or found to
have been incredible. This does not mean however that the court must disregard all
evidence that does not support the finding. Disregarding undisputed facts that do not
support the finding could skew the analysis of whether there is clear and convincing
evidence. In re J.F.C., 96 S.W.3d at 266;
If, after conducting its review, the court determines that a reasonable fact finder
could not form a firm belief or conviction that the allegations were true, then it must
conclude that the evidence is legally insufficient. In re J.F.C., 96 S.W.3d at 266
In conducting a factual sufficiency review, the court must consider all the
evidence equally, both disputed and undisputed, to determine if the disputed evidence is
19
such that a reasonable fact finder could not have resolved the disputed evidence in favor
of its finding. If in light of the entire record, the disputed evidence that a reasonable fact
finder could not have credited in favor of the finding is so significant that a fact finder
could not have reasonably formed a firm belief or conviction, then the evidence is
factually insufficient. Id. at 266-67
In order to involuntarily terminate parental rights, the State bears the burden of
proving by clear and convincing evidence the following: (1) that the parent committed
one or more of the acts or omissions specifically listed under §161.001(1); and (2)
termination of the parent’s rights is in the child’s best interest. §161.001(2) Proof of one
element does not relief the petitioner from establishing the other. Ruiz v. Texas Dept. of
Family and Protective Servs., 212 S.W.3d 804, 812 (Tex. App.—Houston [1st Dist.]
2006, no pet.) The State has the burden of proof as to all grounds and elements of its
case by clear and convincing evidence. Appellant has no burden of proof. In re G.M.,
596 S.W.2d 846, 847
B. Applicability of §161.004
As a threshold matter, the reviewing court must determine if §161.004 is
implicated in conducting its sufficiency of the evidence analysis under subsections (E)
and (O) where DFPS only pled for termination under §161.002 and §161.001(1)(A)-(T)
but not under §161.004.
§161.004 sets forth the requirements for termination when termination has been
previously denied:
20
(a) The court may terminate the parent-child relationship after rendition of an
order that previously denied termination of the parent-child relationship if:
(1) the petition under this section is filed after the order denying termination was
rendered;
(2) the circumstances of the child, parent, sole managing conservator, possessory
conservator, or other party affected by the order denying termination have materially
and substantially changed since the date the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date the
order denying termination was rendered; and
(4) termination is in the best interest of the child.
(b) At a hearing under this section, the court may consider evidence presented at a
previous hearing in a suit for termination of the parent-child relationship of the parent
with respect to the same child.
The Fort Worth Court of Appeals rejected a mother’s contention that §161.004
provide the only [emphasis in original] way the trial court could terminate her parent
rights after it had rendered a previous order denying DFPS’s request for termination. In
re K.G, 350 S.W.3d 338, 352 (Tex. App. – Ft. Worth 2001, pet. denied) (noting Texas
case law supports the contention that parental rights could be terminated under either
section 161.001or section 161.003)
However, the court further observed using §161.004 is the only way that the trial
court could terminate her parental rights based upon “evidence presented at the hearing
before the trial issued its December 17, 2008 denial of the first petition to terminate.” It
concluded that the trial court erred by admitting evidence from before the December 17,
2008 denial “when DFPS did not plead section 161.004 as a ground to terminate
Mother’s parental rights.” Ultimately, the court’s treatment of §161.004 was not
21
dispositive to the appeal because the evidence of constructive abandonment occurring
after the order denying termination was sufficient to support the subsection (N) finding.
Id. at 352
The Amarillo Court of Appeals recently adopted the reasoning of In re K.G. It
found that a trial court could terminate the parent-child relationship even though it
previously denied termination in a previous order using §161.001 alone if termination is
sought on evidence of acts or omissions having occurred since the earlier order in which
termination was denied. However, to rely on evidence of acts or omissions that were
presented to the trial court before the earlier order denying termination DFPS “must
garner sufficient evidence of section 161.004’s elements, including a material and
substantial change of the parties circumstances.” In re D.N., 405 S.W.3d 863, 870 (Tex.
App. – Amarillo 2013, no pet.) The court also noted it can only uphold the trial court’s
order on a basis that was properly pled and found as the basis for termination in the
judgment. Id. at 870 (citing Vasquez v. DFPS, 190 S.W.3d 189, 194 (Tex. App. –
Houston [1st Dist.] 2005, pet. denied)
Procedural Posture of the First Case:
On January 12, 2011 DFPS filed its original petition wherein it averred that
A.J.M. was A.A.M. and J.M.s alleged father and requested that his parental rights be
terminated under §161.002 or, if he was established to be the father, under
§161.001(1)(A)-(T). (CR 3-26)
On March 27, 2012 the Final Order was signed. It made no findings as to A.J.M.
22
and recited “all relief requested in this case and not expressly granted is denied.” (DFPS
#4 – paragraphs 7 & 21)
On January 8, 2014 DFPS filed its original motion to modify seeking termination
of appellant’s parental rights. While it alleged the “circumstances of the children, or
other party affected by the order have materially and substantially changed since the
date of the rendition of the order” it failed to allege any facts to support its contention.
Moreover, DFPS only requested that father’s rights be terminated under §161.002 and
§161.001(1)(A)-(T). It did not request termination of appellant’s paternal rights under
§161.004 nor did it file any amended pleading prior to trial that sought termination
under §161.004. (CR 30-47 – paragraphs 8.1.1.1. & 10)
The Modification Order entered on September 8, 2014 found, in relevant part:
2.4. the “material allegations contained in the Department’s Motion to Modify are
true;
7. [A..J.M.] is . . . the father of the children [A.A.M. and J.M.]
8.1 . . . some of the evidence considered in this trial related to events occurring
before a prior order denying termination, and such evidence was admissible pursuant to
§161.004; and,
8.2 . . . the petition for termination in this case was filed after the date that an
order denying termination of the parent-child relationship of [J.L.D.] was rendered, that
the circumstances of the children, parent, sole managing conservator, possessory
conservator, or other party affected by the prior order have materially and substantially
changed since the prior order was rendered, and that, before the prior order was
rendered, said parent committed an act listed under §161.001.”
(CR 55-57)
Procedural Posture of the Second Case:
It appears DFPS filed its original petition in I.L.M.’s case on or about January 13,
23
2012 based on the removal affidavit of DFPS investigative caseworker, Tonya Ballard.
(DFPS #9) The original petition was not included in the clerk’s record.
The Agreed Final Decree in cause no. 2012-00305J was signed on December 20,
2012 wherein P.M. was appointed I.L.M.’s sole managing conservator; A.J.M. was
adjudicated to be his father and the parents were appointed possessory conservators. It
also recited “all relief requested in this case and not expressly granted is denied.” (CR
87-97) (DFPS #10)
On August 5, 2013 rather than file a motion to modify under cause no. 2012-
00305J, DFPS filed another original petition in cause no. 2013-04476J wherein it again
requested to be appointed the child’s temporary managing conservator and requested
that appellant’s parental rights be terminated under §161.001(1)(A)-(T). (CR 4-27)
On August 8, 2013 DFPS filed its first amended petition wherein it named P.M. as
an additional respondent. This was the last pleading filed before trial and it alleged, in
relevant part:
12.1.1.1 The “circumstances of the child, a conservator, or other party affected by
the order have materially and substantially changed since the date of the rendition of the
order; and
12.1.4 The order to be modified is entitled Original Petition For Protection of A
Child, And For Conservatorship and Termination in Suit Affecting The Parent-Child
Relationship And Order Setting Hearing and is dated the 5th day of August, 2013.
(CR 33-48)
DFPS failed to offer any facts to support the allegations that the circumstances of
the child or a conservator had materially and substantially changed since December 20,
2012. In contrast to the original petition DFPS did not incorporate the removal affidavit
24
of its caseworker Miranda Harris. (CR 19-27) However, like the original petition it
only requested that A.J.M.’s rights be terminated under §161.001(1)(A)-(T) and not
under §161.004 (CR 33-48)
The Modification Order entered on September 8, 2014; in cause no. 2013-04476J;
found, in relevant part:
2.3 the material allegations contained in the Department’s Motion to Modify are
true;
6. The circumstances of the Child or Sole Managing Conservator, Possessory
Conservator, or other party affected by the prior order entitled AGREED FINAL
DECREE IN A SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP, dated
December 12, 2012, and entered in Cause Number 2012-00305J . . . have materially and
substantially changed since the rendition of the order to be modified . . .
8.1 . . . some of the evidence considered in this trial related to events occurring
before a prior order denying termination, and such evidence was admissible pursuant to
§161.004;” and,
8.2 . . . the petition for termination in this case was filed after the date that an
order denying termination of the parent-child relationship of [J.L.D.] was rendered, that
the circumstances of the children, parent, sole managing conservator, possessory
conservator, or other party affected by the prior order have materially and substantially
changed since the prior order was rendered, and that, before the prior order was
rendered, said parent committed an act listed under §161.001.”
(CR 87-89)
C. Argument & Analysis
While the necessary §161.004 findings are recited in the subject modification
orders DFPS did not plead for termination under that statute in either case. Instead the
live pleading it went to trial on only requested termination on §161.001(1)(A)-(T)
grounds.
The Supreme Court recently affirmed the line of cases that have followed this
25
Court’s Vasquez holding that “termination can only be upheld a ground that was both
pleaded by the party seeking termination and found by the trier of fact.” In re S.M.R.,
434 S.W.3d 576, 581 (Tex. 2014)
Therefore, because DFPS did not pled §161.004 as an independent ground for
termination, the relevant evidence supporting the enumerated predicate grounds should
not include evidence that was presented to the trial court prior to the prior orders. In re
D.N., 405 S.W.3d at 871-872 (holding that evidence presented to the trial court prior to
the final order could not be considered by appellate court where subject order did not
include §161.004 references) The relevant time period in the case of A.A.M. and J.M. is
March 27, 2012 to the date of trial August 21, 2013 and in I.L.M.’s case December 20,
2012 to August 21, 2013.
ISSUE ONE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(E)
Applicable Legal Standard
To support the termination of parental rights under §161.001(1)(E), the State must
prove that the parent “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.” The relevant inquiry under this section involves the parent’s acts and omissions.
In re J.W., 152 S.W.3d 200, 205 (Tex. 2006)
Termination under subsection (E) “must be based on more than a single act or
omission and requires a voluntary, deliberate and conscious course of conduct by the
26
parent that endangers the child’s physical and emotional well-being.” Id. at 205; In re:
A.S., 261 S.W.3d 76, 86 (Tex. App. - Houston [14th Dist.] 2008, pet. denied)
Endangerment is defined as “to expose to loss or injury; to jeopardize.” Texas
Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although “endanger”
means more than a threat of metaphysical injury or the possible ill effects of a less-than
ideal environment, it is not necessary that the conduct be directed at the child or that the
child actually suffers injury.
In addition, under subsection (E), the cause of the endangerment must be the
direct result of the parent's conduct alone and must be the result of a conscious course of
conduct rather than a single act or omission. In re A.S. 261 S.W.3d at 83 Thus, the
relevant inquiry is whether evidence exists that a parental course of conduct endangered
the child’s physical or emotional well-being. Jordan v. Dossey, 325 S.W. 3d 700, 713
(Tex. App. – Houston [1st Dist.] 2010, pet. denied)
Evidence of a parent's past conduct, including criminal history, may be relevant if
it shows a conscious course of conduct occurring both before and after a child's birth.
Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ)
While it is not necessary that the endangering conduct be directed at the child or that the
child actually suffers an injury, the child must be exposed to loss or injury. In re: J.W.,
225 S.W.3rd at 205
27
Relevant Evidence
Appellant contends that the evidence is legally and factually insufficient to
support the termination finding under subsection (E) for all three children whether or not
the Court applies §161.004. Nevertheless, in the event the Court finds that §161.004 is
relevant in conducting its sufficiency of the evidence analysis evidence relating to events
that occurred before the prior orders were entered is also reviewed. In addition because
the endangerment evidence, or lack of it, pertaining to A.A.M. and J.M. is different from
that pertaining to I.L.M. it is reviewed separately.
Evidence Relating to A.A.M. and J.M. Between March 27, 2012 and August 21, 2014:
During this period, the children have been in DFPS permanent managing
conservatorship and have been in the same adoptive foster home since August 2012.
They are bonded to the current caregiver.
Evidence Relating to A.A.M. and J.M. Before March 27, 2012:
Green testified when A.A.M. and J.M. came into care in 2011 they were out of
control and went through five placements.
According to the Yoakum affidavit dated January 12, 2011 (DFPS #12) DFPS
received a referral on September 21, 2010 that alleged physical abuse and neglectful
supervision of the children by their parents. She interviewed the parents at their
apartment in December 30, 2011. The stove and refrigerator did not work. There was
no food in the refrigerator and no furniture in the bedroom. The children slept on an air
mattress and the parents on the sofa.
28
Appellant admitted smoking marihuana but agreed to stop and cooperate with
DFPS. He denied knowing that J.L.D. smoked marihuana but she later tested positive.
He admitted being charged in 2010 with assaulting J.L.D. but denied committing the
offense.
The children did not disclose any abuse and had no injuries, marks or bruises.
Yoakum returned to the apartment on December 31, 2010 and found it “clean and neat.”
The children were appropriately dressed and “did not appear to have any injuries.”
Evidence Relating to I.L.M. Between December 20, 2012 and August 21, 2014:
In December 2012 I.L.M. was placed with his paternal grandmother, P.M. She
suffered a mild stroke in June 2013 and at that time Green heard that he was no longer in
her care.
The Harris affidavit (DFPS #11) states that on July 25, 2013 she found I.L.M. at
the parents’ residence. Appellant explained the child was only with them until P.M.
recovered from her stroke. J.L.D.’s sister would supervise their visits but she was not
home. The parents signed a safety service plan agreeing not to visit I.L.M. until further
notice from DFPS. Harris also interviewed P.M. who stated she had a “mild stroke” on
June 6, 2013. She let A.J.M. care for his son due to the stroke. The child was returned
to her care and she agreed to not allow contact between the parents and I.L.M. until
notified by DFPS.
According to Green, I.L.M. was placed back with P.M. in August 2013 and
removed from her in March 2014 due to her health problems. He was then placed in
29
foster home with his siblings. He was behind on speech skills and has made progress on
his verbal & social skills. The child sleeps and eats better due to the foster home’s more
structured environment.
Smith was assigned to I.L.M.’s case after he was placed in foster care. Since
being placed there he has made great strides and is bonded to the caregiver.
A.J.M. testified he was only taking care of I.L.M. because his mother suffered a
stroke. His sister, Sunday also cared for him. She has no criminal or drug history.
Evidence Relating to I.L.M. Before December 20, 2012:
The Ballard affidavit (DFPS #9) states she began her investigation because when
I.L.M. was born his mother had an open CPS case. She later learned that the child’s
“meconium screen result” was positive for marihuana. Ballard saw the parents’ home
and described it as “very nice and well kept.” There was a baby bed and bunk beds for
the older children in anticipation of their return home. When informed of the child’s
positive marihuana result, A.J.M. denied using drugs or knowing that J.L.D. used drugs.
Evidence Relating to Appellant Between March 27, 2012 and August 21, 2014:
According to Green, appellant was visiting his older two children at the DFPS
office “constantly” and visits were appropriate until May 2013. He did not visit from
May through September. He completed court ordered drug program in September 2012
but continued to test positive after that.
Appellant testified he last visited the children in November 2013. Two weeks
before his Christmas visit Green said his visits were being stopped but she did not
30
explain the reason. He had been visiting for two and a half years straight. On some
occasions he would appear for a visit but the children were not there. The last time this
happened was in September. Green told him the foster parent was not available. He
stopped visiting when his mother became ill and he took care of I.L.M.
A.J.M. was able to do all the services the “first time” but now had a better job
with more hours that made it more difficult to do.
During this period, urine and hair samples were taken from appellant to perform
drug tests in May and September 2012, March, May, August and October, 2013; and
February 2014. (DFPS # 17)
Jeffries testified the October 8, 2013 tests were negative for opiates and alcohol
except for the ingestion test that detected cocaine at 1,967 and the exposure test detected
cocaine at 2,647. The February 4, 2014 urine test did not detect any drugs or alcohol.
However the ingestion extended opiate hair test found cocaine at 1,830 and the ingestion
and exposure test only found exposure to marihuana.
Jeffries concluded that A.J.M. is “not a daily user of cocaine” but agreed he used
it more than once during the pendency of the case. When asked by the trial court if
cocaine was “still a problem for each parent,” he answered, the test results are
“consistent on low levels . . . it’s not a number high in the sky; it’s a relatively low
number.” Jeffries went on to explain that “nobody” could tell if the parents used cocaine
four or five times. All that can be said is “[t]hey’ve done it more than one time.” (RR p.
30 & p. 31; L. 1)
31
On August 26, 2013 appellant was convicted of the class B misdemeanor offense
of theft. (DFPS #16)
Evidence Relating to Appellant Before March 27, 2012:
Green testified appellant visited his oldest two children over the course of 2011
and they know who he is. In addition to the information provided in the Yoakum and
Harris affidavits, the record shows that specimens were taken from appellant in January
and November 2011 as well as January and March 2012.
Jeffries testified the January 2011 urine test detected Xanax at “therapeutic levels
. . . if there’s a prescription” and chronic marihuana use and “more than one-time” but
not chronic cocaine use. The November 2011 test showed cocaine use increased and the
alcohol test was negative. The January ingestion hair test showed cocaine at 4.051
picograms and marihuana at 1.0. The March 2012 test revealed that marihuana use was
still “heavy” and cocaine was “at 2,119 picograms.”
Appellant’s criminal record reveals that he was convicted of the following
offenses: two charges of the state jail felony offense of possession of a controlled
substance on June 3, 1999; the state jail offense of delivery of a controlled substance eon
January 30, 2001; the class B misdemeanor offense of possession of marihuana on
March 5, 3005; the class B misdemeanor offense of theft on March 10, 2008; the class B
misdemeanor offense of possession of marihuana on January 23, 2009; the class A
misdemeanor offense of failure to identify oneself to a police officer on January 23,
2009; the class A misdemeanor offense of assault on a family member on May 6, 2010;
32
and, the class B misdemeanor offense of theft on August 26, 2013.
Argument & Analysis
Termination under subsection (E) must be based on more than a single act or
omission and requires a voluntary, deliberate, and conscious course of conduct by the
parent that endangers the child’s physical and emotional well-being. In re: A.S., 261
S.W. 3d at 86
For the reasons set forth above in the discussion of §161.004, appellant submits
that the scope of the evidence the Court must consider pertaining to A.A.M. and J.M. is
limited to the time period between March 27, 2012 and August 21, 2014 and for I.L.M.
it should be limited to the period between December 20, 2012 and August 21, 2014.
However, appellant contends that the evidence supporting the subsection (E) termination
finding is legally and factually insufficient even when all the evidence adduced at trial is
considered.
There is no evidence to show how A.J.M. through his conduct exposed A.A.M. or
J.M. to loss or injury or in any way jeopardized them. They were living in a foster home
and the father only visited them at the DFPS office. Green testified he was appropriate
at those visits.
While appellant tested positive for cocaine and marihuana after March 27, 2012
Jeffries could only concluded that he was not a “daily user of cocaine;” tested positive at
“a relatively low number” and used drugs more than one time during the pendency of
the case. Similarly, father had one conviction for a class B theft during this period but
33
the offense was committed on September 14, 2011. There is simply no nexus to explain
how these activities endangered his children who were in DFPS conservatorship.
The evidence pertaining to how appellant endangered I.L.M. between December
20, 2012 and August 21, 2014 is scant. A snap shot of this child’s condition on
December 20, 2012 reveals that he was living with P.M. who was appointed his
permanent managing conservator. His parents was named his possessory conservators
and allowed supervised visits at all mutually agreeable times.
When P.M. became ill she allowed A.J.M. and his mother to care for their son.
Yet there was no evidence that during the unspecified period he stayed with the parents
their conduct endangered him. If P.M. had knowingly placed him with persons that
endangered his well being DFPS would have been required to remove him rather than
placed him back with her.
If the Court finds that DFPS pled for termination of A.J.M.’s parental rights under
§161.004 and considers the evidence that was present to the trial court before the
respective final orders were signed, DFPS has still failed to meet its evidentiary burden.
To support termination under §161.004 DFPS must prove by clear and convincing
evidence the following two elements:
(2) the circumstances of the child, parent, sole managing conservator, possessory
conservator, or other party affected by the order denying termination have materially
and substantially changed since the date the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date the
order denying termination was rendered;
34
In regard to A.A.M. and J.D. there is insufficient evidence to prove either
element. First, there was some evidence that when the children came into DFPS care in
2011 they were out of control and their behavior had improved since being placed in
their current foster home in August 2012. Nevertheless, this evidence consisted of
conclusory opinions elicited from Green and Smith. Elizondo v. Krist, 415 S.W.3d 259,
264 (Tex. 2013) (“bare, baseless opinions will not support a judgment even if there is no
objection to their admission in evidence”)
Nor is there sufficient evidence to establish the second element in regard to the
two oldest children. The only evidence regarding endangering conduct is found in the
Yoakum affidavit. While she states on her first visit to the parents’ apartment the stove
and refrigerator were not working, when she returned the next day she noted it was neat
and clean. Moreover, endangering conditions concerns subsection (D) a termination
ground that was pled but not found by the trial court. In re A.S., 261 S.W.3d at 83
(explaining that subsection (D) concerns child’s environment and subsection (E)
concerns parent’s conduct)
More importantly, the children did not disclose any abuse nor did Yoakum find
any signs of abuse. Appellant disclosed that he had a assault of a family member charge
against J.L.D. in 2010. His criminal records indicate it was actually committed on
September 14, 2011. In any case, there is no evidence establishing how his criminal acts
exposed his children to danger. This is particularly true where, like in this case, most of
the acts occurred before the children were born. See In re E.N.C. 384 S.W.3d at 804
35
(“DFPS bears the burden of introducing evidence concerning the offense and
establishing that “the offense was part of a voluntary course of conduct that endangered
the children’s well-being [emphasis added].”)
Appellant admitted to Yoakum that he smoked marihuana. He denied knowing
that J.L.D. was using drugs. Jeffries testified appellant took his first drug test on
January 25, 2011 that revealed chronic marihuana use and “more than one-time” but not
chronic cocaine use. Again while there was evidence of drug usage there was no
evidence to place it in context - such as when, where and with whom was it consumed?
Without such evidence the fact finder could not form a reasonable belief that appellant’s
use of marihuana and occasionally cocaine exposed his children to danger.
Finally, appellant concedes there was evidence there was evidence that P.M.’s
circumstances substantially and materially changed due to her strokes. Nevertheless, he
argues that he did not engage in a continuing course of conduct that endangered I.L.M.
The evidence relating to this child before December 20, 2014 is found in the
Ballard affidavit. She described the parents’ home as “very neat and well kept.” She
noted the baby bed and bunk beds waiting for the children’s return.
Ballard learned new born I.L.M. tested positive for marihuana. Both parents also
tested positive for this drug. DFPS however placed the child with P.M. when he was
released form the hospital. In fact, the child was never placed with the parents. It is
doubt based on the strength of the foregoing evidence the trial court would have
terminated appellant’s rights on subsection (E) grounds. Certainly, DFPS would not
36
have agreed to appointing appellant as a possessory conservator if there was clear and
convincing evidence that his conduct endangered I.L.M.
In conclusion, the Court should find that the evidence is insufficient to support the
subsection (E) termination finding.
ISSUE TWO: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(O)
Applicable Legal Standard
The Family Code provides that a court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence that the parent has:
Failed to comply with the provisions of a court order that specifically
establish the actions necessary for the parent to obtain the return of the
child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for
not less than nine months as result of the child’s removal from the parent
under Chapter 262 for the abuse or neglect of the child.
§161.001(1)(O)
Involuntary termination statutes must be “strictly construed” in favor of the
parent. In re E.N.C., 384 S.W.3d at 802 §161.001(1)(O) includes a specificity
requirement and DFPS is required to “support its allegations against [appellant] by clear
and convincing evidence; conjecture is not enough.” In re D.N., 405 S.W.3d at 878-79
Argument & Analysis:
Appellant asserts that there is insufficient evidence to support the required
element under subsection (O) that the children were removed from appellant under
37
Chapter 262 for the abuse or neglect of the children.
If the relevant time period for A.A.M. and J.M. is limited to between March
27, 2012 and August 21, 2014, there is no evidence that they were removed from
appellant under Chapter 262 for the abuse or neglect inflicted upon them. In fact,
at all relevant times they were in the permanent managing conservatorship of
DFPS. Moreover, there was no evidence that anyone, including appellant, abused
or neglect them during this period.
Similarly, I.L.M. was removed from his managing conservator, P.M., due to her
illness and inability to care for him. Thus, like his siblings, he was also not removed
due to abuse or neglect.
Furthermore, I.L.M. was never in his father’s care and therefore could not have
been removed from him due to abuse or neglect. Tests conducted at the hospital where
the child was born showed he tested positive for marihuana, as did his mother. The
parents signed a DFPS safety service plan and agreed to place the child with P.M.
While there is evidence that I.L.M. was removed from J.L.D. due to her use of
marihuana while pregnant, there is no evidence that A.J.M. knew she was using this
drug.
If the Court considers evidence that was presented to the trial court in the case of
the oldest two children before March 27, 2012, there was similarly insufficient evidence
to show they were removed from appellant due to abuse or neglect.
38
According to the Yoakum affidavit, the children did not disclose any abuse and
had no injuries, marks or bruises. She found their apartment to be “clean and neat.” The
children were appropriately dressed and “did not appear to have any injuries.”
Moreover, both Green and appellant testified that he completed the FSP in I.L.M.’s case
prior to the initial final order being entered.
In conclusion, involuntary termination statutes are strictly construed in favor of
the parent. Subsection (O) includes the specific requirement that the child be removed
from the parent under Chapter 262 for abuse or neglect to the child. Here the evidence
is insufficient to support that element in the case of all three children. Therefore, the
subsection (O) termination finding should be reversed.
PRAYER
Appellant, A.J.M., prays that the Court reverse the judgment terminating his
parental rights to A.A.M., J.M. and I.L.M. Appellant further prays that this case be
remanded to the trial court solely for the purpose of conducting an evidentiary hearing
on the issue of conservatorship. Appellant prays for general relief.
Respectfully submitted,
/s/ william m thursland
_________________________
William M. Thursland
TBN: 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
Tel.: (713) 655-0200 x 105; Fax: (713) 655-9035
Email: wmthursland@hotmail.com
Attorney for Appellant, A.J.M.
39
CERTIFICATE OF COMPLIANCE
I certify that the foregoing computer generated brief complies with word limit
requirements of TRAP 9.4 (3). Relying on the word count of the computer program used
to prepare this document, the number of words, is 10,385 excluding the caption, identify
of parties and counsel, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of procedural history, signature, proof of service,
certificate of compliance and appendix.
/s/ william m thursland
_______________________
William M. Thursland
CERTIFICATE OF SERVICE
I certify that on January 4, 2015 a true and correct copy of the foregoing brief was
served in accordance with TRAP on Sandra D. Hachem, Sr. assistant Harris County
attorney, 1019 Congress, 17th Fl., Houston, TX 77002, by electronic delivery.
/s/ William. M. Thursland
_________________________
William M. Thursland
40
in the Interest of I.L.M.
Combined Opinion