ACCEPTED
01-14-00801-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/26/2015 3:29:50 PM
CHRISTOPHER PRINE
CLERK
Nos. 01-14-00801-CV,
and 01-14-00798-CV
__________________________________________________________
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 1/26/2015 3:29:50 PM
FOR THE FIRST JUDICIAL DISTRICTCHRISTOPHER A. PRINE
OF TEXAS AT HOUSTON Clerk
__________________________________________________________
IN THE INTEREST OF
I.M., A.M. and J.M., Children
__________________________________________________________
A.J.M. Appellant
v.
DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee
__________________________________________________________
APPEALED FROM THE 315th DISTRICT COURT OF HARRIS COUNTY,
TEXAS, Trial Cause Nos. 2013-044767J, and 2011-00219J
__________________________________________________________
APPELLEE’S BRIEF
VINCE RYAN, COUNTY ATTORNEY
State Bar #99999939
By: Robert J. Hazeltine-Shedd
Assistant County Attorney
State Bar #24067652
1019 Congress, 17th Floor
Houston, Texas 77002
Phone: 713/274-5292; Fax: 713/437-4700
Email: robert.hazeltine-shedd@cao.hctx.net
Attorney for Appellee
Texas Department of Family
and Protective Services
ORAL ARGUMENT REQUESTED
i
TABLE OF CONTENTS
Table of Contents ...................................................................................................... ii
Index of Authorities ................................................................................................. iii
Request for Oral Argument ........................................................................................ v
Statement of the Case ................................................................................................vi
Reply Points ............................................................................................................ vii
Statement f Facts ........................................................................................................ 1
Summary of Argument ............................................................................................. 19
Argument and Authorities ........................................................................................ 24
Reply Point One: There was legally and factually sufficient evidence to
support the court’s predicate findings for termination of the appellant’s
parental rights ....................................................................................................... 24
1. Applicable Law and Scope of Review. ......................................................... 24
2. Standard of Review ........................................................................................31
3. There was conclusive proof of the parents’ pattern of endangering
conduct under subsection (E) where it was undisputed that the Appellant
Father jeopardized his children by continuing in criminal activities,
continuing in illegal drug activities, and failing to complete the
Department’s plan for reunification…. .............................................................. 32
Reply Point Two: Though review of this ground is unnecessary, there was
sufficient evidence to support the trial court’s termination of the Appellant
Father’s parental rights under subsection (O) ................................................... 45
Prayer for Relief ....................................................................................................... 50
Certificate of Service ............................................................................................... 51
Certificate of Compliance With Word Count ........................................................... 51
ii
INDEX OF AUTHORITIES
CASES PAGE
Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) ........................................................... 27
Compania Financiara Libano, S.A., v. Simmons, 53 S.W.3d 365 (Tex. 2001)........ 28
Hercules Offshore, Inc. v. Excel Crane & Hydraulics, Inc., No. 01-13-00817-CV,
2014 WL 6601644 (Tex. App.―Houston [1st Dist.] 2014, no pet.)..................28, 29
Horizon/CMS Healthcare Corp. v. Aula, 34 S.W.3d 887 (Tex. 2000) ..................... 27
In re A.V., 113 S.W.3d 355 (Tex. 2003).................................................................... 46
In re B.B., 971 S.W.2d 160 (Tex. App.―Beaumont 1998, pet. denied) .................. 33
In re B.H., No. 01-10-00415―CV, 2011 WL 4501940 (Tex. App.―Houston [1st
Dist.] 2011, no pet.).................................................................................................. 33
In re C.E.K., 214 S.W.3d 492 (Tex. App.—Dallas 2006, no pet.) ........................... 40
In re C.H., 89 S.W.3d 17 (Tex. 2002) ...................................................................... 31
In re. E.C.R., 402 S.W.3d 239 (Tex. 2013) .......................................................23, 46
In re G.A., 01-11-00565-CV, 2012 WL 1068630 (Tex. App.—Houston [1st Dist.]
Mar. 29, 2012, pet. denied) ...................................................................................... 35
In re. J.F.C., 96 S.W.3d 256 (Tex. 2002) ...........................................................31, 32
In re K.G., 350 S.W.3d 338 (Tex. App.―Fort Worth 2011, pet. denied) ..........28, 29
In re. R.M.S., No. 01-13-00331-CV, 2013 WL 5637703 (Tex. App.―Houston [1st
Dist.] Oct. 11, 2013, no pet.) ................................................................... 7 fn.4, 49-50
In re T.G.R.-M., 404 S.W.3d 7 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ..........
............................................................................................................................ 37-38
iii
Slatton v. Brazoria County Prot. Servs. Unit, 804 S.W.2d 550 (Tex. App.―Texarkana
1991, no writ) .....................................................................................................29, 34
Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex.1987) ............32, 33, 35
Vasquez v. Texas Dept. of Protective & Regulatory Services, 190 S.W.3d 189 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) ......................................................... 35
Walker v. Texas Dept. of Family & Protective Services, 312 S.W.3d 608 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied) ..................................................................... 35
STATUTES
Tex. Fam. Code Ann. § 101.007 (West 2008) .......................................................... 31
Tex. Fam. Code Ann. § 161.001 (West 2008) .................................24, 25, 32, 46, 47
Tex. Fam. Code Ann. § 161.004 (West 2008) ................................. 19-20, 25, 26, 34
Tex. Fam. Code Ann. § 263.503 (West 2008) ....................................................23, 47
RULES
Tex. R. App. P. 33.1............................................................................................34, 35
Tex. R. Civ. P. 71 ...................................................................................................... 27
Tex. R. Civ. P. 94 ...................................................................................................... 28
iv
REQUEST FOR ORAL ARGUMENT
The undersigned counsel is working toward meeting the requirements of becoming
certified by the Texas Board of Legal Specialization in the practice of Civil
Appellate Law. One of the requirements of becoming so certified is that an
applicant present oral argument to an appellate court in at least four cases in the
three years before presenting an application. Counsel has represented the
Department in several appellate matters but has not yet had the opportunity to
present oral argument. Undersigned counsel therefore asks that this request be
granted so that he may have that opportunity.
v
STATMEMENT OF THE CASE
This brief responds to the brief brought by the father (AJM) from two
parental termination judgments rendered after a full bench trial involving three
children. CR(IM)1 87, CR(AM/JM)2 55. On September 8, 2014, two separate
judgments were signed that terminated the parental rights of the parents (JLD and
AJM) to the subject children and appointed the Department as the children’s sole
managing conservator. Id. Per Tex. R. Civ. P. 306, the judgments recited that the
parental rights of both parents were terminated because it was in the children’s best
interest and based on Texas Family Code §161.001(1)(E), and (O). CR(IM) 90;
CR(AM/JM) 57-58. Both judgments further recited that the Department was
named sole managing conservator, because appointment of a parent as conservator
would significantly impair the children’s physical health and emotional
development and it would not be in the children’s best interest. CR(IM) 90;
CR(AM/JM) 58. The father (AJM) filed timely notices of appeal in both cases.
CR(IM) 114, CR(AM/JM) 83. No motion for new trial was filed.
1
“CR(IM)” refers to the Clerk’s Record from cause no. 2013-04476J concerning the child (IM)
and assigned 01-14-00801-CV in this court. The number following this abbreviation is the page
where the document referenced appears.
2
“CR(AM/JM)” refers to the Clerk’s Record from cause no. 2011-00219J concerning the
children (AM & JM) and assigned 01-14-00798-CV in this court. The number following this
abbreviation is the page where the document referenced appears.
vi
REPLY POINT ONE
There was legally and factually sufficient evidence to support the court’s
predicate findings for termination of the appellant’s parental rights.
REPLY POINT TWO
Though review of this ground is unnecessary, there was sufficient evidence to
support the trial court’s termination of the Appellant Father’s parental rights
under subsection (O)
vii
Nos. 01-14-00801-CV,
and 01-14-00798-CV
__________________________________________________________
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
__________________________________________________________
IN THE INTEREST OF
I.M., A.M. and J.M., Children
__________________________________________________________
A.J.M. Appellant
v.
DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee
__________________________________________________________
APPEALED FROM THE 314th DISTRICT COURT OF HARRIS COUNTY,
TEXAS, Trial Cause Nos. 2013-04476J, and 2011-00219J
__________________________________________________________
__________________________________________________________
APPELLEE’S BRIEF
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Department of Family & Protective Services, Appellee, [hereinafter
“Department”] submits this brief in response to the Appellant Brief.
STATEMENT OF FACTS
In 1993, when AJM was about 18 years old, he was arrested for
manufacturing and delivering a controlled substance and was sentenced to 3 years
-1-
in county jail. RR-8(1)3 p. 13 (see February 12, 1993 note); RR-8(1) p. 8 (AJM
born 6/7/75). In 1995, AJM was arrested for evading arrest or detention and was
sentenced to 15 days in jail. RR-8(1) p. 13. In 1996, AJM was arrested for
possession of controlled substance and sentenced to 7 months in jail. Id. In 1998,
AJM was arrested again for possession of a controlled substance and sentenced to
40 days confinement. Id. In 1999, AJM was arrested for manufacturing and
delivering a controlled substance and was sentenced to 15 months in state jail. RR-
8(1) p. 13; RR-8(4) p. 55 and 60. In 2001, AJM was arrested for manufacturing
and delivering a controlled substance and sentenced to 2 years confinement. RR-
8(1) p. 13; RR-8(4) p. 66.
In 2003, when JLD was about 18 years old, she began a relationship with
AJM. RR-8(1) p. 10 (in 2010 stated she had been with him for 7 years); RR-8(1)
p. 8 (JLD born 2/13/85). That same year, she was convicted and sentenced to 20
days for possession of marijuana and failure to identify. RR-8(1) p. 12; RR-8(4) p.
19. Later that same year, JLD was arrested for prostitution, and convicted and
sentenced to 30 days. RR-8 p. 12; RR-8(4) p. 22. A few months later, in 2004,
JLD was arrested for prostitution again and sentenced to 45 days in jail. RR-8(1) p.
3
In this brief, “RR-8(1)” refers to 1st part of the 8th volume of the reporter’s record titled, “Exhibits Part 1 of 6 Nos.
P1 – P15” that the court reporter filed with this court under No. 01-14-00801-CV. There are six parts of the
reporter’s 8th volume under No. 01-14-00801-CV and these six parts of volume 8 will be referenced in this brief as
RR-8(1), RR-8(2), RR-8(3), RR-8(4), RR-8(5) and RR-8(6). This court may take judicial notice that the exhibits and
testimony from the trial that are reported for No. 01-14-00801-CV are also included in the record for 01-14-00798-
CV since these cases were tried together. As they are identical, this brief will only reference the documents from the
record in No. 01-14-00801-CV.
-2-
12; RR-8(4) p. 25. Later that same year, JLD was arrested again for possession of
controlled substance and convicted and sentenced to serve one year in jail. RR-8(1)
p. 12. In 2005, AJM was arrested for possession of marijuana and sentenced to 30
days confinement. RR-8 p. 13; RR-8(4) p. 71.
The next year, JLD and AJM had their first child (AM) at the end of 2006.
RR-8(1) p. 18. A few months before the birth of their second child (JM) in 2008,
AJM was arrested for theft and sentenced to 20 days. RR-8(1) p. 13; RR-8(4) p. 76.
After the birth of JM in 2008, a referral was received by the Department because
JLD tested positive for marijuana at the time of JM’s birth. RR-8(1) p. 12. The
Department sent the case to Strengthening Families, which accepted the referral,
but the case was later closed because the family refused services. RR-8(1) p. 12.
About a month after the birth of their second child, AJM was arrested for
possession of marijuana and failure to identify a fugitive from justice and was
sentenced to 40 days. RR-8(1) p. 13; RR-8(4) p. 81 & 86. The child’s
grandmother, Sandra Dixon, was convicted for possession of cocaine on November
19, 2008. RR-8(5) p. 66. In 2010, AJM was arrested for assault causing bodily
injury to a family member and was sentenced to 30 days. RR-8(1) p. 13; RR-8(4)
p. 91.
A few months later, on September 21, 2010, the Department received a
referral claiming that both AJM and JLD were drug users, the mother had a history
-3-
of using Xanax and it was believed she may be snorting cocaine. RR-8(1) p. 8. It
was further alleged that the parents engaged in violent altercations in which the
mother pulled a knife on the father and they hit each other. RR-8(1) p. 8.
Moreover, the children have been knocked down and pushed out of the way while
the parents were fighting. RR-8(1) p. 8. The referral went on to state that the
mother repeatedly hit the children when she was angry. Id.
Several attempts were made by the Department to locate the family and by
November, the Department worker was told the mother was in jail and the father
and children moved. RR-8(1) p. 9. The next month, another referral was received
by the Department that advised the parents had moved to a new apartment and the
apartment had no food, except for crackers, the children were skinny, were seen
outside with just shirts and pampers and on one occasion without any clothes on.
RR-8(1) p. 9. The reporter stated that the neighbors complained of verbal
arguments and the mother could be heard crying. Id. The reporter went on to state
the parents had been evicted. Id.
Upon locating the parents’ residence in December of 2011, the Department
made an attempt to meet them but there was no answer and the worker left a card.
RR-8(1) p. 10. However, AJM called the worker soon thereafter, said she just
missed them and invited her to come to the apartment. Id. Upon finally placing
eyes on the home, the worker confirmed the kitchen did not have food, the stove
-4-
did not appear to work and the refrigerator was dirty with mold inside and outside.
Id.
The father stated the allegations were all lies, and the case was “bullshit.” Id.
He told the worker if he wanted his kids, she could “take them.” Id. The mother
was crying at the time, and told him to stop talking that way. Id. The worker called
law enforcement who came to assist the worker after the father’s voice elevated
and he began yelling. Id.
Upon further interview, the mother confirmed she had been with AJM for
almost 7 years and he was the father of her two children. RR-8(1) p. 10. The
mother admitted that her first CPS case was when she tested positive at the birth of
JM in 2008. RR-8(1) p. 11. She stated the case was closed and no one contacted
her. Id. She stated she was not using drugs at that time and had not used since she
was a teenager. Id. However, after she began to cry she admitted she smoked
marijuana the last week on Christmas Eve. Id.
The mother admitted her 2009 assault case on her criminal record was due to
slapping AJM. RR-8(1) p. 11. She stated her prostitution charges were the result
of her prostituting out a club where she used to work. Id. She admitted she had
just been incarcerated due to a DWI and had been in jail almost two weeks. RR-
8(1) p. 10; RR-8(4) p. 30 (DWI committed 11/7/10).
-5-
AJM admitted he smoked marijuana in the last month as well but stated he
did not use daily and was willing to quit. RR-8(1) p. 11. He admitted his assault to
family member on his criminal record from 2002 resulted because police thought
he hit JLD – but he claimed he did not. Id. He also claimed he did not know JLD
used drugs. Id.
The worker later returned to the apartment on December 31, 2010 to perform
a drug test on the parents. RR-8(1) p. 12. The worker received the drug results on
January 10, 2011, which indicated both parents tested positive for marijuana. Id.
The next day the worker spoke with AJM on the phone and told him the results of
the tests. Id. He said they were planning on moving, but he did not know where.
Id.
On January 12, 2011, the Department requested that it be named temporary
managing conservator of AM and JM. RR-8(1) p. 14. On September 4, 2011, JLD
committed a theft by check and later pled guilty. RR-8(4) p. 37. Before the end of
that year, they had their third child (IM). RR-8(1) p. 42. This child tested positive
for marijuana at the hospital, the mother’s hair follicle tested positive for
marijuana, and AJM’s hair also tested positive for marijuana and cocaine. RR-8(1)
p. 42 and p. 43. An affidavit was prepared and signed by the Department
requesting emergency custody of IM as well because of the parents’ ongoing drug
use despite their involvement with services in association with their open CPS case
-6-
regarding AM and JM. RR-8(1) p. 46. On January 13, 2012, the Department was
named temporary managing conservator of IM. RR-8(5) p. 14.4
Within three months, on March 27, 2012, the court signed a final judgment
in the case involving IM’s older siblings that appointed the Department as the
permanent managing conservator upon finding that appointment of either parent
would significantly impair the children’s health or emotional development and
would not be in their best interest. RR-8(1) p. 18-19. The order further required
JLD to pay $278.20 a month in child support for the children. RR-8(1) p. 28.
A few months later, in December of 2012, a final judgment was signed in
the case involving the child IM and the court appointed “Pearline Myrick” as the
sole managing conservator of IM upon finding the appointment of a parent would
be not be in the child’s best interest because the appointment would significantly
impair the child’s physical or emotional health. RR-8(1) p. 50 and RR-8(5) p. 19.
AJM was ordered to pay Ms. Myrick $285.30 a month for the support of that child.
RR-8(1) p. 63.
The next year on May 23, 2013, JLD committed the crime of prostitution
and was later convicted on her guilty plea. RR-8(4) p. 43. On July 24, 2013, the
Department received a report of neglectful supervision of IM. RR-8(1) p. 71. It
was reported that IM was back in the care of his mother and father, even though he
4
Though this temporary order was not included in the record, this court may presume the trial court took judicial
notice of its own order granting temporary managing conservatorship. In re R.M.S., No. 01-13-00331-CV, 2013 WL
5637703 *4 n. 1 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
-7-
had been removed from their care in the prior order. RR-8(1) p. 71. Pearline, who
was then 67 years of age, had a stroke and claimed she allowed them to have
unsupervised access to the child because of her health condition. RR-8(1) p. 71.
She stated she was better and could take care of the child, therefore, the child was
placed back with her subject to a safety plan in which she agreed the parents would
not have contact with the child. Id. However, the Department investigated further
and determined Pearline could have placed the children with relatives other than
the parents when she became ill, and other family members knew the child was
with the parents. Id. The Department requested temporary managing
conservatorship of the child and the court granted that request. RR-8(1) p. 80.
On August 20, 2013, drug testing was done of JLD and AJM on hair
specimens and they showed positive results for cocaine. RR-8(2) p. 32; RR-8(3) p.
49. On August 20, 2013, the court ordered both JLD and AJM to comply with
each requirement in the Department’s service plan and notified them that failure to
fully comply could result in restriction or termination of parental rights. RR-8(1)
p. 86. However, not long after that order was signed, on August 29, 2013, JLD
committed a crime involving possession of marijuana and was subsequently
convicted on her guilty plea. RR-8(4) p. 49.
On October 8, 2013, both parents signed their service plans and the court
approved and ordered the incorporation of the service plans filed with the court as
-8-
part of the court’s order. RR-8 p. 93-95, 98-112. On October 8, 2013, drug reports
indicated JLD and AJM tested positive for cocaine and marijuana on a hair
specimen source. RR-8(2) p. 47-47; and RR-8(3) p. 57. On February 4, 2014,
AJM tested positive for cocaine on a hair specimen source. RR-8(3) p. 76.
On July 15, 2014, Child Advocate’s prepared a report for a permanency
hearing. RR-8(5) p. 13. The report noted that IM had been placed with his paternal
grandmother who was granted permanent managing conservatorship but she
suffered a second stroke that required hospitalization. RR-8(5) p. 14. IM was
placed with his brother and other foster children. Id. The foster mother disclosed
an interest in adopting IM and his siblings. Id.
Trial proceeded the following year on August 21, 2014. The first witness
was Bruce Jeffries, owner of National Screening Services. RR-75 p. 7. He stated
he has been involved in the review of results for over 21 years and has met with the
doctors, scientists and FDA. RR-7 p. 7. Petitioner’s Exhibits 16 and 17 were
admitted as part of his business records, over an objection that he was not an
expert. RR-7 p. 10-11.
Jefferies then continued to testify regarding the testing and no objections
were lodged. Id. He stated the first time they saw JD was on January 25, 2011 and
5
RR-7 is the 7th Volume of the Reporter’s Record filed with this court under No. 01-14-00801-CV. The same
record is filed under cause no. 01-14-00798-CV but is designated as Volume 3 of 8 Volumes under 01-14-00798-
CV. The testimony of Bruce Jeffries in that record begins on page 6. This court may take judicial notice that the
testimony of Bruce Jeffries under both 01-14-00798-CV and 01-14-00801-CV are identical. Because the records are
identical, this brief will only reference the record of No. 01-14-00801-CV.
-9-
they ran a urine test that picked up Xanax and marijuana. RR-7 p. 11. He stated if
she had a prescription for Xanax she would have been clear because the levels
found in JLD’s system were consistent with a therapeutic dose of the drug. RR-7
p. 11. He stated that the marijuana was fairly high. RR-7 p. 11. He stated the same
day they ran an in ingestion hair test and the results indicated cocaine was found
ingested. RR-7 p. 11. He commented that “she does not do it on a daily basis;”
however, and all you could say is that she did it more than one time. RR-7 p. 11-
12.
Bruce stated JD was seen again on November 4, 2011 and they ran a
different test. RR-7 p. 12. At that time they ran a zero tolerance exposure test and
found marijuana on the outside of her hair, and though her marijuana use dropped,
the test still showed a high level of the drug in her system. RR-7 p. 12-13.
Jefferies stated the next time JLD was tested was on January 24, 2012 and
they were asked to run a urine test. RR-7 p. 13. The marijuana went up to a level
which showed heavy use. RR-7 p. 13. Also, Xanax appeared again. RR-7 p. 13.
He commented: “If she has a prescription, it is therapeutic levels.” RR-7 p. 13. He
noted, however, that their records did not reflect a prescription and she did not
show them one. RR-7 p. 14-15. Jefferies stated they also did a hair test but could
not get a result either positive or negative. RR-7 p. 15. Jefferies stated they ran
- 10 -
ingestion tests following that in March, May and September of 2102 and did not
find anything in her hair. RR-7 p. 16.
On March 15, 2013, they ran a zero tolerance exposure test and nothing was
picked up on the outside of her hair. RR-7 p. 16. Only a very low level of cocaine
was picked up on the inside of her hair. RR-7 p. 16. It indicated a one time use
that would have been a new use. RR-7 p. 17. Two months later, on May 17, 2013,
they ran another zero tolerance exposure test and did not pick up anything on the
inside or outside of her hair samples. RR-7, p. 17.
Nevertheless, on September 20, 2013, they were asked to run a K2 test
involving synthetic marijuana. RR-7 p. 19. K2 was detected in her urine. RR-7 p.
19. Also, an extended opiate hair test was performed that date showed positive for
a metabolite of cocaine in her hair. RR-7 p. 19. They were then asked to run an
exposure and ingestion test on that date and found ingestion of cocaine as well as
marijuana exposure on the outside of the hair. RR-7 p. 19.
On October 8, 2013, an extended opiate urine test was run and no
metabolites were found in her urine. RR-7 p. 19. However, the zero tolerance hair
test and extended opiate hair test taken on that date both came back positive for
cocaine. RR-7 p. 19. The extended opiate urine test and zero tolerance exposure
tests taken in March 2014 found no metabolites and she was clean. RR-7 p. 20.
Overall, Bruce stated it looked like her drug of choice at the beginning was Xanax
- 11 -
and marijuana. RR-7 p. 20. She got off the marijuana but the cocaine seemed to
come back intermittently into the picture. RR-7 p. 20-21.
Moving to P-17 involving AJM, Jefferies stated the first time he saw AJM
was on January 25, 2011. RR-7 p. 22. They ran a urine test that picked up Xanax
at therapeutic levels and marijuana at levels consistent with a chronic user of the
drug. RR-7 p. 22. The ingestion hair test also reinforced the high level finding
concerning marijuana, and cocaine was detected, but not at the same chronic
levels. RR-7 p. 22. The test on November 5, 2011 performed ten months later was
a zero tolerance test. RR-7 p. 22-23. It picked up cocaine indicating the level went
up to more than a one-time use. RR-7 p. 23.
On January 24, 2012 the ingestion hair test showed cocaine and marijuana
levels and on March 13, 2012, the urinalysis showed a level that indicated heavy
use. RR- p. 23. In May of 2012, the ingestion hair test came back positive for
cocaine. RR-7 p. 25-26. The ingestion hear test on September 4, 2012 also showed
positive for cocaine. RR-7 p. 26. On March 15, 2013 a zero tolerance test found
nothing on the outside but was positive for cocaine ingestion. RR-7 p. 27. Two
months later, there was a clear urinalysis and nothing showed on the zero tolerance
test. RR-7 p. 27. On August 20, 2013, they were asked to run an ingestion test and
it showed positive for cocaine, but not for marijuana. RR-7 p. 28. Rather, the
marijuana was only on the outside of the hair sample. RR-7 p. 28. On October 1,
- 12 -
2013, a hair ingestion test showed positive for cocaine and marijuana. RR-7 p. 28.
A week later the extended opiate urine test was clean. RR-7 p. 28. However, some
cocaine was detected. RR-7 p. 28-29. On February 4, 2014 nothing was detected
on AJM’s opiate urine test. RR-7 p. 29. However, some cocaine levels were found
on the ingestion hair test. RR-7 p. 29. Jefferies stated these tests showed that he
used cocaine more than once but he was not a daily user. RR-7 p. 30.
Jefferies confirmed that AJM used drugs in the 10 month period following
January 25, 2011. RR-7 p. 33. Also, he did not remain drug free from January
2012 to September 2012. RR-7 p. 34. The tests also indicate he did not remain
drug free in 2013 and had several positives. RR-7 p. 35-36.
The next witness was the caseworker, Jasmine Green. RR-7 p. 73. She
stated that she was the caseworker for all three children. RR-7 p. 73. She stated
AM is 7, JM is 5 and IM is 2, and they are all placed together in a private agency
foster family home. RR-7 p. 73. The foster home is willing to adopt the children.
RR-7 p. 73.
Green stated that the original case was 2011. RR-7 p. 74. She stated the
substantial material changes since then that caused the State to file a motion to
modify as to AM and JM had to do with the parents making no progress since the
decree was entered. RR-7 p. 74. The agency tried to work with the parents to
possibly place the children back in their home but both parents continued to test
- 13 -
positive for drugs. RR-7 p. 75. As for the youngest, IM, he was placed with the
grandmother, but in June 2013, the Department was informed that she had a stroke,
and a volunteer told Green that the child was with the parents. RR-3 p. 78-79 and
p. 81. The Department was given temporary managing conservatorship and placed
with Ms. Myrick, but in March the child came to live with the siblings because Ms.
Myrick continued to have health problems. RR-7 p. 84. The youngest child has
remained with his siblings since March 29, 2014. RR-7 p. 86. Green noted that
since being placed in his foster home, IM made dramatic improvement. RR-7 p.
86-87. The older siblings bonded with the caregiver and are doing very well. RR-7
p. 87.
Green stated that new family plans of service were created for both parents
on September 6, 2013 and they signed them. RR-7 p. 76. They were both together
at the time. RR-7 p. 77. Their plans were the same except that AJM was required
to complete anger management. RR-7 p. 77. Otherwise, the plans required them to
provide proof of income, safe and stable housing, participate in parenting
education classes, maintain a drug-free environment, maintain contact with the
agency, complete a drug and alcohol assessment, complete random drug testing,
complete individual and group counseling, and complete a psychosocial
evaluation. RR-7 p. 76.
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Green stated that neither parent completed their family services on their new
family service plans and continued to engage in conduct that endangered their
children, including drug use and criminal activity. RR-7 p. 90. In particular, the
children’s mother was convicted of prostitution for an arrest on May 23, 2013. RR-
7 p. 90. She had two earlier convictions in September 2003 and January of 2004.
RR-7 p. 91. She also was convicted of possession of marijuana in September of
2013. RR-7 p. 114.
Green stated that the parents visited after the earlier decree since 2012 but
were not paying child support. RR-7 p. 93. Nevertheless, after May of 2013 they
attended visits less frequently and during the summer months of May and
September 2013 they were not visiting at all. RR-7 p. 94-95. The older children
responded to their lack of visits by being angry and not wanting to see the parents.
RR-7 p. 96. Jasmine stated that the children know who their father is but now they
do not ask to see him. RR-7 p. 105.
Jasmine stated that the mother completed a drug program in October 2012
but she continued to test positive for drugs after that. RR-7 p. 98. She did not
complete any programs for drugs after the initial program. RR-7 p. 98. The father
also completed court ordered services regarding drugs in September 2012, but he
too continued to test positive for illegal drugs after that time. RR-7 p. 98.
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The next witness to testify was Quana Smith, an Advocacy Coordinator
from Child Advocates. RR-7 p. 115. She stated that Child Advocates has been
involved in this case since October of 2013. RR-7 p. 115. She stated they were
only appointed in IM’s case. RR-7 p. 118. Nonetheless, she stated that Child
Advocates believed it was in the best interest of the children that the parental rights
of their parents be terminated. RR-7 p. 116. She stated that was their
recommendation because neither parent proved they could provide a safe, stable
environment, both parents continued to test positive for drugs, made poor parenting
decisions, and had no contact with the children. RR-7 p. 116-17.
The next witness was Sandra Dixon, the maternal grandmother. RR-7 p.
119-20. She stated she was a journeyman and carpenter/builder. RR-7 p. 120. She
stated she has a 17 year old child in her home looking for a job and starting 11th
grade at Austin Middle School. RR-7 p. 120. She asked Ms. Green to do a home
study of her home regarding the grandchildren but was told her supervisor did not
want to look at her. RR-7 p. 124-25. She commented she guessed she had a CPS
referral for one child that ran way. RR-7 p. 125. She had been gone a week and she
reported her as a runaway. RR-7 p. 125. She stated when they found her and they
knocked on her door, she was out of town so they placed with JLD. RR-7 p. 126.
She stated there was another incident 17 years earlier where her twins, then
18 months old, went out and some neighbor brought them back. RR-7 p. 127-28.
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She admitted she had some criminal history involving a felony for recreational
cocaine use about five years before. RR- 7 p. 129. She stated she also had a
second drug charge also involving cocaine that was a revocation of her probation
and got 4 years deferred adjudication in 2008. RR-7 p. 129-30. She also had a
DWI in 1999 or 2000. RR-7 p. 136. She stated she was charged with assault of a
family member in 2011 but it was dismissed. RR-7 p. 140-41. It involved her
daughter Leslie and that was why CPS got involved. RR-7 p. 142.
She stated she was the one who made the initial call on JLD and AJM for
their children because of the violence in their home. RR-7 p. 131. She admitted
she had not seen AM and JM since October of 2012. RR-7 p. 144.
The mother, JLD, stated the child’s grandmother who had her son IM in care
and was conservator was Pearline Myrick. RR-7 p. 150. She stated that Pearline
lives with her. RR-7 p. 151. She stated she told her she was going to court but was
unaware it was trial. RR-7 p. 151. She stated she has been clean since March 2011
and does not know why the drug tests were coming up like that except for her hair.
RR-7 p. 156. She then stated she was clean through 2012 and commented she
guessed she started testing positive a little bit after that. RR-7 p. 156-57.
The final witness, the father (AJM) stated the last time he had a visit with his
children was a year before when he had a November visit. RR-7 p. 158. He stated
it had not been easy for him to communicate with CPS and he claimed CPS failed
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to return calls several times. RR-7 p. 159. He also claimed he showed up for visits
and the children were not made available several times. RR-7 p. 159.
He stated his mother had a stroke and that was why he was watching IM.
RR-7 p. 160. He stated he had him maybe a week before CPS took him. RR-7 p.
161. He commented that his mom raised him and his dad was never around. RR-7
p. 164. He stated he had been to court like 50 times. RR-7 p. 162. The court
commented he had not had 50 hearings. RR-7 p. 162.
AJM stated since May 2013, CPS separated him from his kids, because his
mom had a stroke. RR-7 p. 163. He stated he was working every day and since
completed his services and has a better job working more hours. RR-7 p. 163. He
indicated he was working temporary when he completed services. RR-3 p. 163.
Following closing arguments, the court granted the Department’s request to
terminate the parents’ rights, and signed the final orders in each case on September
8, 2014. RR-7 p.172-73. AJM timely filed notice of appeal on September 26,
2014.
SUMMARY OF ARGUMENT
In this appeal, the Appellant Father presents multiple issues for review,
including contests that the trial court lacked legally and factually sufficient
evidence to support its termination of his parental rights under subsections (E) and
(O) of the Texas Family Code. As a preliminary matter, however, his brief
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contends that the trial court erred when it considered certain evidence of facts that
occurred prior to decrees entered as to the appellant and his children in 2012. His
argument is that the Department failed to include a reference to section 161.004 in
its pleadings, and as this statute is the only method through which the trial court
could consider evidence from before the 2012 decrees, the court committed error
by reviewing such evidence.
The record reveals that this argument should fail. While the Department’s
pleadings do not contain the statutory reference to section 161.004, it properly pled
the elements necessary to meet the requirements of that section. Namely, the
Department included in its petition the allegations that the circumstances of the
children had changed, AJL committed acts sufficient to show conduct described by
Section 161.001 before date of the 2012 decrees, and that termination of AJM’s
parental rights was in the children’s best interest. See Tex. Fam. Code Ann.
§161.004 (West 2008). In support, the Department included with its petitions
affidavits outlining AJM’s extensive history involving criminal conduct, illegal
drug use, and violent altercations that occurred prior to 2012. The Department’s
petitions therefore met the requirements of the rules of civil procedure regarding
adequate pleadings in that they plainly provided fair and adequate notice to AJM of
the bases of the Department’s claims. Moreover, at no time during the proceedings
below did any party register a complaint, objection, or file special exceptions
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regarding the Department’s pleadings. In fact, at trial, the father’s own attorney
elicited testimony regarding facts that occurred prior to 2012. As a consequence,
not only does the record affirmatively disprove the Appellant’s claim under this
point, but is should be considered waived as it was never made in the trial court
below.
The appellant’s contentions with regard to the sufficiency of the evidence
should also fail. Even assuming, without conceding, that the scope of the evidence
available for review should be limited to facts which occurred after 2012, the facts
show that AJM engaged in conduct endangering to his children throughout his
children’s lives, including before and after they were placed in the Department’s
custody, as well as after the 2012 decrees were entered. Thus, the arguments in
AJM’s brief that there was insufficient evidence to support the trial court’s
subsection (E) ground finding should fail.
In brief summary, the evidence supporting the court’s endangerment finding
was as follows. Beginning in 1993 and continuing after his children were born and
while they were in the Department’s care, AJM was involved in a lengthy list of
criminal conduct, most of which involved illegal drugs. Between 1993 and 2006,
when AM was born, he was convicted nine times of crimes involving the
manufacture, possession and delivery of controlled substances, as well as other
crimes involving evading arrest, and discharge or display of a firearm. After AM
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was born, he was convicted of a theft charge, and after his second child JM was
born, he was convicted of drug possession and assault of a family member. In
accordance with case law analyzing evidence supportive of an endangerment
finding, this evidence showed that AJM repeatedly exposed his children to a life of
uncertainty and instability, as well as to his absence from their lives and
consequent inability to support them.
The evidence further shows that AJM continued in this conduct even after
the Department became involved with his family and removed his children from
his care. In September of 2011, the record shows the Department received a
referral from the children’s maternal grandmother stating that the parents were
drug users who engaged in violent altercations in front of the children during
which the children were knocked down or pushed out of the way while the parents
were fighting. Moreover, the grandmother’s report stated that both children had
been physically abused by both parents and that JM had whip marks on his back
and AM had a gash on her forehead which were caused by AJM. As the cases
progressed, AJM was provided numerous family service plans affording him the
opportunity on several occasions to remediate his conduct. However, the record
shows that rather than engage in these services, he persistently used illegal drugs
over the course of the three years that his children were removed from his care,
including after the 2012 decrees were entered. In 2011, AJM tested positive for
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cocaine and marijuana January and November, one month before IM was born in
December of 2011. In 2012, he tested positive for cocaine and marijuana in
January and March, and cocaine in May and September. In 2013, he tested
positive for cocaine in March, August and October, and then finally tested positive
for cocaine and marijuana in February of 2014, the same year this case went to
trial. The Department’s caseworker testified regarding AJM’s drug use that it
persisted regardless of the numerous attempts the Department made to provide
AJM with services, and it was her belief that returning the children to his care
would subject them to substantial danger and exposure to his substance abuse.
This evidence was sufficient for the trial court to form a firm belief or conviction
that AJM engaged in a voluntary course of conduct endangering to his children’s
well-being in support of its subsection (E) finding. The arguments in AJM’s brief
to the contrary should be overruled.
As the evidence was sufficient to support the court’s (E) ground finding, this
court need not review the contentions in AJM’s brief with regard to subsection (O).
Nonetheless, if such a review is necessary, there was sufficient evidence in support
of this finding as well. Under this point, AJM’s brief does not contend that he
failed to comply with the provisions of a court order specifying the tasks necessary
for him to obtain the return of his children, or that they were in the Department’s
care for greater than nine months as required by this ground. Rather, his sole
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contention is that there was insufficient proof that his children were removed under
Chapter 262 for abuse or neglect. The record reveals otherwise.
As made clear by the Texas Supreme Court as well as the Texas Family
Code, a removal under Chapter 262 for abuse or neglect includes one in which a
parent, “endangered [a child’s] physical health or safety, such that initial and
continued removal are appropriate”. In re. E.C.R., 402 S.W.3d 239, 245 (Tex.
2013) (emphasis added). This language reflects the dictates of several provisions
in the Texas Family Code which supply that, even after an initial removal, a court
must reassess at later statutory hearings whether to continue that removal while a
child is in the Department’s care. See Tex. Fam. Code Ann. §263.503(a)(9) (West
Supp. 2013). In fact, under these provisions, a court must hold regular placement
review hearings even after a final order is entered naming the Department
conservator at which it must determine whether returning a child to the parent is
appropriate. See Id. In this case, the evidence supported that the initial removal
was supported by sufficient evidence, and that even after the court entered its
judgments in 2012, continued removal was appropriate given that the parents
persisted in criminal conduct and drug use. In short, the evidence supporting the
initial removal was the parents’ lengthy history of criminal conduct involving
drugs, as well as the allegations in the Department’s affidavits indicating the
parents were involved in violent altercations, including the physical abuse of their
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children. The record shows that, throughout the time the children were removed
from their parents, the parents continued to engage in criminal behavior and drug
use, indicating returning the children to their care would subject the children to
further harm. Thus, the trial court’s initial and continued removal of the children
from the parents’ care under 262 was amply supported and AJM’s arguments under
this point should be overruled.
ARGUMENT AND AUTHORITIES
REPLY POINT: There was legally and factually sufficient evidence to support
the court’s predicate findings for termination of the appellant’s parental
rights.
1. Applicable Law, and Scope of Review
Section 161.001 of the Family Code was the statutory basis by which the
Department sought termination of parental rights in both cases at issue in the two
subject appeals. Tex. Fam. Code Ann. §161.001 (West 2008). CR(IM) 11-17;
CR(AM/ JM) 34-41. Section 161.001 of the Family Code authorizes termination of
parental rights on a finding by clear and convincing evidence that (1) the parent
committed at least one of several predicate acts or omissions listed under section
161.001(1) of the Family Code and (2) that termination is in the child’s best
interest. Tex. Fam. Code Ann. §161.001 (West 2008).
Both cases in this appeal were tried together and included in their decree, as
required by Tex. R. Civ. P. 306, references to Section 161.001 of the Family Code
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as the basis for the court’s parental termination decisions. CR(IM) 89-90;
CR(AM/JM) 57-58. In particular, the decrees recited that the court found parental
termination was in the children’s best interest and that AJM committed at least one
of the predicate acts listed in Section 161.001(1); specifically Subsections E and O.
Id.
Section 161.004 permitted the Department to request parental termination
under Section 161.001 for facts prior to the 2012 decrees upon certain proof. See
Tex. Fam. Code Ann. §161.004 (West 2008). Consistent with that request, the
Department’s pleadings recited the proof requirements of Section 161.004 of the
Family Code by acknowledging prior orders had been signed for the children, that
the “circumstances of the children, a conservator, or other party affected by the
order have materially and substantially changed since the date of the rendition of
the order” and that orders for modification of managing conservatorship are in the
best interest of the children. CR(IM) at pp. 33, 34, 38; CR(AM/JM) p. 30, 33; See
Tex. Fam. Code Ann. §161.004 (West 2008). Moreover, it is clear that both suits
were not limiting their claims to proof after 2012, because both suits began with
requests for emergency relief relying, in part, on affidavits that detailed
endangering conduct of the parents involving illegal drug use and violent
altercations that occurred prior to the 2012 judgments. CR(IM) at p. 20;
CR(AM/JM) at p. 24-25.
- 25 -
Acknowledging that the Department’s allegations of facts under Section
161.004 of the Family Code were proven with evidence at trial, the court’s decrees
in both cases stated: “some of the evidence considered in this trial related to events
occurring before a prior order denying termination, and that such evidence was
admissible pursuant to § 161.004, Texas Family Code.” CR(AM/JM) at 57; CR
(IM) at 89. Nevertheless, Appellant’s Brief essentially claims this was error and
the court’s scope of review should have been limited to evidence of facts occurring
after the 2012 decrees because Section 161.004 was not pled. This analysis is
incorrect.
First, the elements of Section 161.004 of the Family Code were pled. That
the words “Section 161.004” were not stated in the Department’s petitions did not
mean AJM was not given fair notice of the application of this law. All that is
required under the rules of procedure for application of the law in a case is that the
respondent be given fair and adequate notice of the facts upon which the pleader
bases a claim. Horizon/CMS Healthcare Corp. v. Aula, 34 S.W.3d 887, 897 (Tex.
2000). This clearly was done. Consistent with all the elements of proof under
Section 161.004, both suits referenced the prior 2012 decrees subject to
modification, alleged material and substantial change in circumstances, claimed
parental termination under Section 161.001, and alleged it was in the children’s
best interest for the prior decisions to be modified. CR(AM/JM) at pp. 30, 33, 34-
- 26 -
44; CR (IM) at pp. 33, 34, 38, 39-45; See Tex. Fam. Code Ann. §161.004 (West
2008).
Moreover, no claim was raised in the trial court that Section 161.004 was not
properly pled and no special exceptions were filed asserting any uncertainty
regarding the relief the Department was seeking, or the scope of the evidence on
which the Department intended to rely. When a party fails to specifically except to
pleadings, a court should construe the pleadings liberally in favor of the pleader.
Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). A court should uphold the
petition as to a cause of action that may be reasonably inferred from what is stated,
even if an element of the cause of action is not specifically alleged. Id. Also, even
if it could be claimed the Department mistakenly drafted its claims (which does not
appear to be the case), Tex. R. Civ. P. 71 permitted the court to treat the pleading
as properly designated. Consequently, there does not appear to be any basis to
accept the claim being suggested in Appellant’s Brief.
In addition, the complaint in Appellant’s Brief is more in the nature of a
claim of res judicata. See In re K.G., 350 S.W.3d 338, 346 (Tex. App.–Fort
Worth 2011, pet. denied) (noting that Section 161.004 was enacted to permit prior
evidence to be considered notwithstanding res judicata). The doctrine of res
judicata holds that a final judgment in an action bars the parties from bringing a
second suit on matters actually litigated as well as causes of actions or defenses
- 27 -
which arise out of the same subject matter and which might have been litigated in
the first suit. Compania Financiara Libano, S.A., v. Simmons, 53 S.W.3d 365, 367
(Tex. 2001). The rules of procedure do not expressly require a party to plead
whether evidence prior to an earlier judgment will be presented for relief
requested. Nevertheless, a party who seeks to apply the defense of res judicata to
bar relief based on prior facts must do so as an affirmative defense, which can be
waived if not raised in the trial court. See Hercules Offshore, Inc. v. Excel Crane &
Hydraulics, Inc., No. 01-13-00817-CV, 2014 WL 6601644 (Tex. App. – Houston
[1st Dist.] 2014, no pet.); See Tex. R. Civ. P. 94. However, there is nothing in the
record indicating that res judicata was raised as a defense at any point during the
proceedings below.
In both of these cases, while the Department clearly sought relief based, in
part, on prior facts when it filed the instant suits and alleged elements of Section
161.004, no answer was filed by either parent asserting res judicata, nor was any
relief requested on the basis of res judicata at trial. Consequently, the attempt at
this point should be considered waived. See Hercules Offshore, Inc. v. Excell
Crane & Hydraulics, Inc., 2014 WL 6601644 *8; Tex. R. App. P. 33.1. That the
claim should be barred as waived is particularly true considering the father’s own
attorney elicited testimony at trial concerning facts prior to the previous
termination, and no objection was raised when the majority of evidence was
- 28 -
offered and admitted concerning the father’s unfitness prior to the 2012 decree.
See RR-7 (pp. 103-107); See RR-7 p. 72-73 (No objection to Petitioner’s Exhibits
P1 to P23); See Slatton v. Brazoria County Prot. Servs. Unit, 804 S.W.2d 550, 553
(Tex. App.―Texarkana 1991, no writ) (even though parent pled res judicata,
because parent did not challenge admission of evidence prior to previous decree,
the claim was waived); See also In re K.G., 350 S.W.3d at 346.
Further, notwithstanding the obvious waiver of res judicata as a defense,
Appellant’s Brief claims the court erred in considering prior evidence under
Section 161.004 because there was no proof of a material and substantial change in
circumstance after the decrees in 2012 to invoke application of Section 161.004.
As already stated, that claim was expressly waived since even Appellant presented
evidence from prior to the 2012 decree and failed to object to relevant evidence
that established proof of the father’s inappropriate acts before and after the 2012
decrees. Nonetheless, the following evidence confirms there was a material and
substantial change in circumstances in the situation of all the relevant parties since
the 2012 decrees:
1. Both parents committed inappropriate criminal and illegal drug
activities after the 2012 decrees. RR-7 p. 74-75 (despite efforts to try
and reunify, parents continued to test positive for drugs); RR-8(4) p.
43 (mom convicted for prostitution in May 2013); RR-8(4) p. 49
(mom convicted marijuana possession).RR-8(2) p. 32 and RR-8(3) p.
49 (parents test positive for cocaine August 2013); RR-8(2) p. 47-47;
and RR-8(3) p. 57 (October 8, 2013 drug reports indicated JLD and
- 29 -
AJM positive for cocaine and marijuana); RR-8(3) p. 76 (AJM tested
positive for cocaine on hair specimen).
2. Since the 2012 decrees, IM came back into parents’ care because of
health issues of named conservator though prior order removed the
parents as conservators. RR-8(1) p. 71; RR-8(5) p. 14 (Child
Advocate report notes paternal grandmother who was conservator
suffered second stroke);
3. Since last decrees, children were placed together in foster home where
foster parent disclosed interest in adopting them. RR-8(5) p. 14.
Youngest child observed to make dramatic improvements after move
with siblings since March 29, 2014. RR-7 p. 86-87. Children
observed bonded with caregiver and doing very well. RR-7 p. 87.
Consequently, the record disproves the claim in Appellant’s Brief that the scope of
evidence to be reviewed in support of the court’s findings should be limited or that
Section 161.004 had not application, not only because it was waived, but also
because the record establishes otherwise.
2. Standard of Review
As far as the applicable standard of review, the standard for the court’s
findings under Section 161.001 requires consideration of the clear and convincing
burden of proof at trial. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (“burden of
proof at trial necessarily affects appellate review of the evidence.”); In the Interest
of J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). In that connection, both legal and
factual sufficiency challenges consider the standard of proof for clear and
convincing evidence by considering whether the evidence is such that a fact-finder
could reasonably form a firm belief or conviction about the truth of the State's
- 30 -
allegations. See In re C.H., 89 S.W.3d at p. 25 (Tex. 2002); In re J.F.C., 96 S.W.3d
at pp. 265-66; Tex. Fam. Code Ann. §101.007 (West 2008).
In In re J.F.C. the Supreme Court explained, in light of the identical
inquiries made to the clear and convincing standard, the distinction between legal
and factual sufficiency when the burden of proof is clear and convincing evidence
may be a fine one in some cases, but clarified that there is a distinction in how the
evidence is reviewed. 96 S.W.3d at p. 266. The court explained that in a legal
sufficiency review, a court should look at all of the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true, giving appropriate
deference to the trier of fact. Id. In a factual sufficiency review, a court of appeals
must give due consideration to evidence that the factfinder could reasonably have
found to be clear and convincing and with respect to disputed evidence, a court
should consider whether the disputed evidence is such that a reasonable factfinder
could not have resolved that disputed evidence in favor of its finding. Id. If, in light
of the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient. 96 S.W.3d at pp. 266-67.
3. There was conclusive proof of the parents’ pattern of endangering
conduct under subsection (E) where it was undisputed that the
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Appellant Father jeopardized his children by continuing in criminal
activities, continuing in illegal drug activities, and failing to complete
the Department’s plan for reunification.
The first predicate act challenged in Appellant’s Brief’s concerns the finding
under Subsection E of Section 161.001(1) of the Family Code. Subsection (E) of
Section 161.001(1) of the Family Code involves proof that the parent engaged in
conduct endangering to a child, which is defined as exposing a child to loss or
injury or jeopardizing a child's emotional or physical health. Texas Dep't of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); Tex. Fam. Code Ann.
§161.001(1)(E) (West 2008).6 As clarified by the Supreme Court, the proof for
endangerment does not have to be established as an independent proposition, but
can be inferred from parental misconduct alone. Boyd, 727 S.W.2d at p. 533. Also,
it is not necessary that the parental misconduct be directed at the child, occur in the
child’s presence or that the child actually suffer injury from it; and it may include
evidence of conduct before the child's birth as well as before and after the child has
been removed by the Department. See In re B.B., 971 S.W.2d 160, 166-69 (Tex.
App.―Beaumont 1998, pet. denied).
In the present case, there was conclusive proof establishing that AJM
jeopardized his children’s emotional or physical well-being in support of the trial
6
Specifically, Subsection (E) involves a finding 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.” Tex. Fam. Code Ann. §161.001(1)(E) (Vernon 2008)
(emphasis added).
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court’s finding under Subsection E. The record contains undisputed facts that
showed AJM engaged in a pattern of behavior that subjected his children to an
uncertain and insecure future, which jeopardized their basic need for permanence
and stability. As such, the trier of fact had ample support from which to form a
firm belief or conviction that AJM endangered his children under Subsection E.
See In re B.H., No. 01-10-00415—CV, 2011 WL 4501940 (Tex. App.―Houston
[1st Dist.] 2011)(no pet.) (because children need stability and permanence, conduct
that subjects a child to a life of uncertainty and instability endangers a child’s
physical and emotional well-being).
As a consequence, the arguments presented in AJM’s brief should be
overruled. As an initial matter, his brief first contends that the evidence available
for review should be limited to those facts which occurred after March of 2012 as
to AM and JM, and after December of 2012 as to IM because the Department
failed to plead section 161.004 as a basis for relief in either of its petitions. See
Tex. Fam. Code. Ann. §161.004 (West 2008); Appellant’s Brief, p.33. As set forth
above, however, the Department properly pled the proof required to support a
claim under section 161.004 and any complaint to the contrary was waived because
no party objected at any point during the proceedings below in order to preserve
AJM’s argument here. See Slatton, 804 S.W.2d at 553; Tex. R. App. P. 33.1.
Moreover, without conceding that the evidence should be limited to facts
- 33 -
occurring after the 2012 decrees, there was sufficient proof that AJM engaged in
conduct endangering to his children throughout the entire time his children were in
the Department’s care, including after the 2012 decrees were entered. In the face
of this evidence, AJM’s brief asserts there was nothing showing that, through his
conduct, he exposed his children to loss or injury or in any way jeopardized them.
Appellant’s Brief, p.33. His argument is that, because the children were in a foster
home and only had contact with AJM at visits supervised by the Department, there
can be no nexus showing how his drug use and criminal conduct endangered them.
Id. However, this argument both fails to acknowledge the entirety of the evidence
supporting the trial court’s decree and misconstrues the standard courts apply to an
endangerment finding. See Boyd, 727 S.W.2d 531, 533 (stating, “it is not
necessary that the conduct be directed at the child, or that the child actually suffers
injury.”); also Walker v. Texas Dept. of Family & Protective Services, 312 S.W.3d
608, 616 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (stating endangerment
may be inferred from parental misconduct even if the conduct is not directed at the
child or occur in the child’s presence, and such conduct may occur before the
child’s birth and both before and after the child has been removed by the
Department.).
Contrary to the assertions in AJM’s brief, the record here shows that AJM
engaged in illegal conduct and drug use both before his children were born and
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throughout their lives, including while the children were in the Department’s care
and his parental rights were at stake. See In re G.A., 01-11-00565-CV, 2012 WL
1068630, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (“A
parent's history of drug use or criminal conduct can show a pattern of conduct that
subjects a child to an uncertain and unstable life, endangering the child's physical
and emotional well-being.”). Moreover, the evidence was he persisted in this
conduct both before and after the 2012 decrees despite the Department’s efforts to
provide him with rehabilitative services. See Vasquez v. Texas Dept. of Protective &
Regulatory Services, 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied) (noting that, “appellant's failure to remain drug-free while under
TDPRS's supervision, knowing that such conduct could place [his] children, .. at
risk,” supported an endangerment finding.). Therefore, notwithstanding the
arguments in AJM’s brief regarding the application of section 161.004, the trial
court plainly had sufficient evidence to support its conclusion that termination of
AJM’s parental rights was warranted under subsection (E).
The record contains the following support for the court’s endangerment
finding, much of which was uncontested. AJM’s criminal records and drug test
results show that he was involved in criminal conduct and illegal drugs for years
leading up to the initiation of the suits involving his children, and that he persisted
in that conduct throughout the time the children were in the Department’s care.
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See RR-8(1), P-Ex 3, pp.13-14; RR-8(3), P-Ex 17, pp.3-78; RR8(4), P-Ex 19,
pp.53-98. In the years before AM’s birth, AJM was arrested and convicted
multiple times of several crimes, the majority of which involved illegal drugs. See
RR-8(1), P-Ex 3, pp.13-14. The Department’s affidavit, attached to the petition it
filed on January 12, 2011, outlines that AJM was involved in the following:
February 12, 1993: arrest and conviction for manufacturing and
delivering a controlled substance, sentenced to 3 years.
November 9, 1993: arrest for disorderly conduct involving the
discharge or display of a firearm.
January 19, 1995: arrest and conviction for evading arrest, sentenced
to 15 days.
August 9, 1996: arrest and conviction for possession of a controlled
substance, sentenced to 7 months.
December 12, 1998: arrest and conviction for possession of a
controlled substance, sentenced to 40 days.
March 23, 1999: arrest and conviction for manufacturing and
delivering a controlled substance, sentenced to 15 months.
January 5, 2001: arrest and conviction for manufacturing and
delivering a controlled substance, sentenced to 2 years.
July 9, 2004: arrest and conviction for evading arrest with a motor
vehicle, sentenced to 6 months.
March 27, 2005: arrest and conviction for possession of marijuana,
sentenced to 30 days.
RR-8(1), P-Ex 3, pp.13-14; RR-8(4), P-Ex 19, pp.53-71.
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Then, on December 16, 2006, AM was born. RR-8(1), P-Ex 3, p.9. Two years
later, in March of 2008, AJM was convicted of theft and received 20 days’
incarceration. RR-8(4), P-Ex 19, p.76. Nine months later, on December 16, 2008,
JM was born, and just over a month later in January of 2009, AJM was again
convicted of possession of marijuana and sentenced to serve 40 days in jail. RR-
8(1), P-Ex 3, p.9; RR-8(4), P-Ex 19, p.81. Then in April of 2010, when his
children were one and three years’ of age, he was convicted of assault to a family
member and received a sentence of 30 days. RR-8(4), P-Ex 19, p.91. This
evidence supported that AJM had a lengthy history of committing crimes involving
drugs, and subjected his children repeatedly to his absence from their lives. See In
re T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
citing In re. S.M.L., 171 S.W.3d 472, 479 (Tex. App.―Houston [14th Dist.] 2005,
no pet.) (“incarcerated parent’s absence from child’s daily life and inability to
support child are factors contributing to course of endangering conduct and that
parent’s repeated commission of criminal acts subjecting him to possibility of
incarceration can negatively impact child’s emotional well-being.”).
That AJM endangered his children was further supported by the
Department’s investigation, initiated by a referral made in September of 2010
indicating that he neglected and physically abused his children. See RR-8(1), P-Ex
3, p.8. At trial, JLD’s mother, Sandra Dixon, testified that it was she who made
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this initial referral to the Department. RR 7, pp.130-131. According to the
affidavit attached to the Department’s January 12, 2011 petition:
The referral stated that both parents are drug users and smoke
marijuana on occasions [sic]. The mother has a history of using
Xanax and may be currently snorting cocaine. The referral went on to
state that the parents engage in violent altercations. The mother has
pulled a knife on the father and they both hit each other. The referral
stated that the children have been knocked down and pushed out of
the way while the parents are fighting. The mother has violent fits of
rage and will take it out on the children by striking them with objects
in her hand. The referral went on to state that the mother will
repeatedly hit the children when she is angry or raging. Recently, the
referral stated, [JM] had whip marks across his back and [AM] had a
gash across his forehead and reported that the father causes [sic] the
injuries.
RR-8(1), P-Ex 3, p.8.
During the course of the investigation that followed, the Department was able to
interview both parents. Id. at 10. Initially, AJM did not allow the Department to
speak to the children’s mother alone. Id. He denied abusing his children and told
the Department’s investigative caseworker that the case was, “bullshit.” Id. He
also told the worker that if she wanted the children, she could take them. Id.
Because AJM failed to cooperate with the worker and was yelling at her, she called
law enforcement to aid her in carrying out her investigation. Id. In her subsequent
interviews with the children’s parents, JLD, their mother, stated she was recently
arrested and jailed after being charged with a D.W.I. Id. at 11. She also said her
first case with the Department was initiated after she tested positive for marijuana
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when JM was born, but that the family refused to engage in services so the case
was closed. Id. In addition, she admitted to criminal history involving an assault
on AJM and prostitution, and both parents admitted to using marijuana and tested
positive for marijuana on drug tests administered by the Department. Id. at 11-12.
The Department subsequently filed its Original Petition for Protection,
Conservatorship, and Termination as to AM and JM, in which it requested to take
possession of the children. CR-798, p.3. This evidence supported that the children
were subject to significant instability in their home as a result of conduct in which
AJM participated, including his multiple incarcerations for several different
crimes, his use of illegal drugs, the violence in his relationship with JLD, and the
physical abuse the children suffered at the hands of both AJM and JLD. See In re
C.E.K., 214 S.W.3d 492, 497 (Tex. App.—Dallas 2006, no pet.) (domestic violence
and a propensity for violence, including a parent’s abuse of the other parent or
children, is conduct supportive of an endangerment finding).
Moreover, the record reveals that AJM’s involvement with illegal activity
and drugs continued regardless of the Department’s removal of his children and its
efforts at providing him with rehabilitative services. Shortly after the Department
filed its initial petition in January of 2011, AJM submitted to drug testing which
showed he was positive for both marijuana and cocaine on January 25, 2011. RR-
8(3), P-Ex 17, pp.3-5. Bruce Jefferies, who was employed by the agency which
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conducted the testing, described that AJM’s results indicated he was a chronic user
of marijuana, and had used cocaine more than once prior to the test. RR-7, p.22.
Then, in September of the same year, AJM was arrested and later convicted of theft
by check, for which he received 10 days’ incarceration. RR-8(4), P-Ex 19, p.37.
Two months later, in November of 2011 – eleven months after AM and JM were
removed from his care – AJM again participated in drug testing which, according
to Jefferies’ testimony, showed him positive for cocaine at increased levels
indicating he had again used the drug more than one time prior to the test. RR-
8(3), P-Ex 17, p.7; RR 7, pp.22-23.
The record supports that AJM’s continued drug use and criminal behavior
not only subjected AM and JM to the possibility that AJM’s parental rights would
be terminated, but also supported the trial court’s finding that AJM’s conduct was
endangering to his third child, IM. According to the Department’s affidavit,
attached to the petition it filed in January of 2012, IM was born on December 13,
2011. RR-8(1), P-Ex 9, p.72. That AJM was arrested during the previous
September for theft by check and tested positive for cocaine use in January
indicates he was engaging in this conduct while JLD was pregnant with IM.7 See
Walker, 312 S.W.3d at 616 (endangering conduct may occur before the child’s
birth). Moreover, the affidavit which was attached to the petition seeking IM’s
7
Jeffries’ testimony indicated that the drug test results from these tests covered a period of 90
days preceding the date the test was taken. RR 7, pp.30-31.
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removal made plain that AJM’s continued drug use was placing his relationship
with his children in jeopardy. The affidavit outlined not only that IM tested
positive at his birth for marijuana, but also made clear that the Department was
seeking termination of AJM’s parental rights in its suit involving AM and JM as a
result of his continued involvement with drugs. The affidavit states as follows:
The agency is seeking to be named temporary managing conservator
of [IM] due to the child testing positive for marijuana. The family has
a current open case with CPS involving two siblings [JM], age three,
and [AM], age five. Currently the Department is moving toward the
goal of termination concerning those children due to ongoing drug use
by the parents. [JLD] has tested positive on her hair follicle tests for
marijuana and [AJM] tested positive on his hair follicle for marijuana
and Cocaine.
RR 8(1), P-Ex 9, p.42.
Even though the Department’s petition as to IM made clear that AJM’s use
of illegal drugs was threatening his continued relationship with his children, as the
two suits regarding AJM’s three children progressed, the evidence was that he
continued to use illegal drugs. On January 24, 2012 and then again on March 13,
2012, AJM submitted to drug testing which, on both occasions showed positive for
marijuana and cocaine. RR-8(3), P.-Ex 17, pp.10, 12; RR 7, pp.23-24. Then in
March of 2012 and later in December of 2012, the trial court entered decrees as to
the Department’s two suits. RR-8(1), P-Exs 4 and 10, pp.17, 49. In neither decree
did the court terminate AJM’s parental rights to any of his three children, but rather
named the Department sole managing conservator of AM and JM and named IM’s
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grandmother, Pearline, IM’s conservator. Id. Nonetheless, AJM’s rights were
severely restricted by both decrees as he was granted no specific right to visit AM
or JM in the March 2012 decree, and in the December 2012 decree was only
allowed to visit IM under the supervision of Pearline or another adult she named.
Id. The evidence was, however, that even having had his rights so restricted as a
result of his conduct, he continued to use illegal drugs. After the March 2012
decree, AJM tested positive for cocaine on May 22, 2012 and then again on
September 4, 2012. RR 8(3), P-Ex 17, pp.16, 18. And after the December 2012
decree, he tested positive for cocaine on March 15, 2013 and August 20, 2013, and
for cocaine and marijuana on October 1, 2013, October 8, 2013, and February 4,
2014. Id. at pp.29, 49, 58, 66, 76. Regarding AJM’s use of illegal drugs, Jefferies
testified that every test conducted on AJM showed positive for cocaine at levels
indicating AJM was using it multiple times prior to each test. RR-7, pp.30-31.
Jefferies also testified that AJM tested positive persistently over the course of the
three years that the children were in the Department’s care. Id. at 33. The trial
court thus had ample evidence, even after the March and December 2012 decrees,
in support of its finding that AJM engaged in a course of conduct endangering to
his children.
That AJM prioritized his drug use over the well-being of his children was
made even clearer by the evidence that he failed to take advantage of the many
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opportunities he was afforded to address that conduct. On August 5, 2013, the
Department filed a third petition, this one again seeking possession of IM after the
child was found in the parents’ possession in violation of the December 2012
decree which required that all contact between IM and his parents be supervised.
See RR-8(1), P-Ex 11, pp.71. On August 20, 2013, the trial court again placed IM
in the Department’s temporary conservatorship, finding that there was a continuing
danger to IM’s physical health or safety, and that for IM to remain with his parents
was not in his best interest. RR 8(1), P-Ex 12, p.81. On October 1 and 8, 2013,
the court held a statutorily required Status Hearing, following which it ordered
AJM to comply with the terms of a family service plan the Department developed
for him. RR 8(1), P-Ex 13, p.94; RR 8(1), P-Ex 15, pp.106-13; Tex. Fam. Code
Ann. §263.201 (West 2008). The evidence was that this was one of many times the
Department had offered AJM rehabilitative services. At trial, the Department’s
caseworker Jasmine Green testified that over the time the Department was
involved with the family, it had generated numerous family service plans which
explained and outlined what the parents needed to do to have the children returned
to them, but that the parents had declined to engage in those services. RR 7, pp.88-
89. Nonetheless, the Department again offered several services to AJM after
removing IM from his care in August of 2013. RR 8(1), P-Ex 15, pp.106-13.
Green testified, and AJM’s family service plan reflects, that the Department offered
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AJM parenting classes, anger management, drug and alcohol treatment, individual
and group counseling, and a psychosocial evaluation. RR 7, p.76; RR 8(1), P-Ex
15, pp.106-13. The evidence was that AJM engaged in drug treatment services, but
nonetheless continued to use illegal drugs after completion of those services. RR-7
p. 98. Regarding AJM's efforts at making use of the services the Department had
offered him, Green testified as follows:
The Agency has had – has been involved with the family since
2011. In 2012, we were granted PMC without termination, given [sic]
the parents extended amount of time to adjust their lifestyle to make
the appropriate accommodations to parents of young children.
Since I’ve been the caseworker, we’ve generated numerous
family plans explaining and outlining for the parents what they need
to do to have their children returned to them. The Agency did make
one attempt, and the parents declined to engage and complete a court-
ordered service; which in the Agency’s opinion, is not necessarily
putting your children’s first – your children’s needs before yours.
Since that time, the parents continue to engage in un-parentlike
[sic] conduct, which would, in my opinion, put children seven – ages
seven, five and two in great danger due to exposure to substance
abuse and abuse and not necessarily providing a structured and stable
environment for them to grow up.
RR 7, p.88-89.
On this record, the trial court had sufficient evidence to find that despite
several opportunities afforded AJM to address his drug use through services
offered by the Department, he instead maintained his established pattern of testing
positive for illegal drugs, subjecting his children to the possibility that he would be
absent from their lives, as well as to the risk that his parental rights could be
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terminated. This evidence supported the trial court’s finding that AJM engaged in
a voluntary course of conduct endangering to his children’s well-being. Its finding
under subsection (E) was therefore amply supported by the record and the
arguments in AJM’s brief to the contrary should be overruled.
3. Though review of this ground is unnecessary, there was sufficient
evidence to support the trial court’s termination of the Appellant
Father’s parental rights under subsection (O).
As already stated above, only one predicate finding under Section
161.001(1) of the Family Code was necessary to support the court’s parental
termination decision with respect to the father, and because the evidence clearly
supported Subsection E, the court’s findings under Subsection O need not be
reviewed. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Nonetheless, the
challenge to the court’s finding under O should also be overruled.
Under Subsection O, a trial court must find by clear and convincing
evidence that the parent failed to comply with the provisions of a court order that
specifically established 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 a result of the child's removal from the parent under Chapter 262 for the abuse
or neglect of the child. Tex. Fam. Code Ann. 161.001(1)(O) (West 2008).
Appellant’s Brief does not contest that the father failed to comply with
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actions necessary to be reunited with his children under an order for reunification,
or that his children were in the Department’s care for more than nine months. The
sole contention is that there was no proof that the children were removed from him
under Chapter 262 for abuse or neglect. This claim is without merit.
As made clear by the Supreme Court’s in In re E.C.R., the reference to a
removal under Chapter 262 for abuse or neglect in Subsection O of Section
161.001(1) is a removal in which a parent “endangered [a child’s] physical health
or safety, such that initial and continued removal are appropriate”. 402 S.W.3d
239, 245 (Tex. 2013) (emphasis added). The reference to “continued” removal
recognized that even after an initial removal, a court must reassess whether to
continue removal when a child comes into care under Chapter 262. In fact, even
after a final judgment that names the Department permanent managing conservator
without parental termination, a court must conduct regular placement review
hearings to decide, among other things, whether “returning the child to a parent, is
appropriate for the child.” Tex. Fam. Code Ann. §263.503(a)(9) (West Supp. 2013).
Consequently, a removal initiated under chapter 262 for abuse or neglect can
continue even after a final order that names the Department permanent managing
conservator. That is consistent with what is recognized in Subsection (O) because
it refers to a child who remains in the “permanent managing conservatorship” of
the Department as a result of a prior removal under chapter 262 for abuse or
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neglect. Tex. Fam. Code Ann. §161.001(1)(O) (West 2008).
In this case, the evidence clearly shows that the “initial” removal of the three
children under Chapter 262 was appropriate because of parental neglect, and that
such neglect “continued” to make the removal appropriate, even after the final
judgments in 2012. Namely:
1. Both parents engaged in a well-established pattern of illegal
drug activities resulting in incarcerations in the decade before
their first child was born in 2006. RR-8(1) p. 13 & RR-8(4) pp.
53-99 and RR-8(1) p. 12 and RR-8(4) pp. 3-51 (1993: AJM
sentenced 3 years for manufacturing and delivering controlled
substance; 1995: AJM sentenced for evading arrest; 1996: AJM
sentenced to 7 months jail for possession controlled substance;
1998: AJM sentenced 40 days for possession of controlled
substance; 1999: AJM sentenced 15 months for
manufactury/delivery controlled substance; 2001: AJM
sentenced 2 years for manufactury/delivery controlled
substance; 2003: JLD sentenced jail time for possession
marijuana, failure to identify and prostitution; 2004: JLD
arrested again for possession controlled substance and
sentenced one year; 2005: AJM sentenced for possession
marijuana).
2. Shortly after birth of their first child, AJM arrested for theft and
sentenced 20 days. RR-8(1) p. 13; RR-8(4) p. 76.
3. When their second child was born in 2008, JLD tested positive
for marijuana in 2008. RR-8(1) p. 12; See also RR-8(1) p. 11.
4. After second child born, AJM convicted for another drug crime
as well as an assault against a family member. RR-8(1) p. 13;
RR-8(4) p. 81 & 86 and p. 91.
5. Department confirms problem with parents’ illegal drug
activities after investigating referrals. RR-8(1) pp. 8-11.
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6. After Department named temporary managing conservator on
January 12, 2011, mother commits crime and third child born.
RR-8 p. 14. RR-8(4) p. 37 (September 4, 2011, JLD committed
theft by check and pled guilty). RR-8(1) p. 42 (2011 IM born).
7. Third child tests positive for marijuana and both parents also
test positive for drugs. RR-8(1) p. 42 and p. 43.
8. March 27, 2012 Department appointed permanent managing
conservator of two oldest children. RR-8(1) p. 18-19.
9. December of 2012, the court appointed “Pearline Myrick” as
IM’s sole managing conservator. RR-8(1) p. 50; RR-8(5) p. 19.
10. Illegal activities of parents continued after 2012 decrees. RR-
8(4) p. 43 (2013: JLD committed a prostitution crime and was
later convicted on her guilty plea); RR-8(2) p. 32; RR-8(3) p.
49 (August 20, 2013, drug testing on hair specimens confirmed
parents positive for cocaine); RR-8(4) p. 49 (August 29, 2013,
JLD committed a crime involving possession of marijuana and
was subsequently convicted on her guilty plea). RR-8(4) p. 49;
RR-8(2) p. 47-47; and RR-8(3) p. 57 (October 8, 2013, drug
reports confirm JLD and AJM positive for cocaine and
marijuana on a hair specimen); RR-8(3) p. 76 (AJM tested
positive for cocaine on a hair specimen source).
The foregoing evidence, which is primarily undisputed, conclusively
establishes that all of AJM’s children came into care under chapter 262 initially
because of neglect as a consequence of the dangerous environment perpetuated by
their parents’ longstanding illegal activities and drug use. Moreover, even after the
parents were removed as conservators under final orders, the court continued the
children’s removals because of the parent’s inappropriate neglect to these children
by continuing their illegal drug activities. On this record, the evidence was more
than sufficient to support the court’s conclusion that these children remained in the
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Department conservatorship as a result of initial and continued orders for removal
under Chapter 262 for parental neglect.
It is noted that Appellant’s Brief claims because the children did not
verbalize they had been physically abused, had no injuries, marks or bruises and
their apartment was clean, there was no proof of abuse or neglect to warrant a
removal under Chapter 262. Appellant’s Brief at p. 45. Nevertheless, as discussed
by this court in In re R.M.S., the Supreme Court clarified that the terms “abuse or
neglect” are interpreted broadly to include the risks or threats of the environment in
which the child is placed. 2013 WL 5637703 *22014 WL 6792036 (Tex. App. –
Houston [1st Dist.] 2014, no pet.). The proof concerning the parents’ pattern of
illegal activities, primarily involving illegal drug use, unabated after the children’s
removal, confirmed the risk of the environment to support the court’s initial
decision to remove under chapter 262 and the court’s continued removal after
removing the parents as conservators. Because the proof as to the other elements
for Subsection (O) are unchallenged, the trial court’s finding under Subsection (O)
should be affirmed.
WHEREFORE, PREMISES CONSIDERED, Appellee Department of
Family & Protective Services requests that this court affirm the trial court’s
judgment and for such other and further relief as appropriate in law or in equity.
Respectfully submitted,
VINCE RYAN
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COUNTY ATTORNEY
By: /s/ Robert J. Hazeltine-Shedd
Robert J. Hazeltine-Shedd
Assistant County Attorney
State Bar #24067652
1019 Congress, 17th Floor
Houston, Texas 77002
Phone: 713/274-5292; Fax: 713/437-4700
Email: robert.hazeltine-shedd@cao.hctx.net
Attorney for Appellee,
Department of Family & Protective Services
CERTIFICATE OF SERVICE
I hereby certify that on this the 26th day of January, 2015 a true and correct
copy of the foregoing Appellee’s brief was sent to all parties to this appeal by
sending a copy of this brief by (1) electronic transmission to William M. Thursland
by email at wmthursland@hotmail.com and/or by certified mail to 440 Louisiana
Street, Suite 1130, Houston, Texas, 77002.
/s/ Robert J. Hazeltine-Shedd/
Robert J. Hazeltine-Shedd
CERTIFICATE OF COMPLIANCE WITH NUMBER OF WORDS
This is to certify, pursuant to Tex. R. App. P. 9.4(i)(3), that the foregoing
computer generated brief consists of no more than 15,000 words, 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, certification, certificate of compliance and
appendix. Relying on the word count of the computer program used to prepare this
document, the number of words, subject to count under the rules, is 12,755 words.
/s/ Robert J. Hazeltine-Shedd/
Robert J. Hazeltine-Shedd
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