In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00387-CV
IN THE INTEREST OF E.X.H. AND S.M.H., CHILDREN
On Appeal from the 100th District Court
Carson County, Texas
Trial Court No. 11978, Honorable Stuart Messer, Presiding
February 22, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
M.H. appeals from an order terminating her parental rights to her children, E.X.H.
(E.) and S.M.H. (S.). The children were removed from M.H. after local authorities arrested
her for money laundering and abandoning and endangering a child. The charges related
to her apparent participation in a scheme to transport drugs or money to purchase drugs
between Arizona and Kentucky. E. (born in 2013) and S. (born in 2016) were in the
vehicle their mother drove across country as part of the scheme and at the time of the
arrest. Though M.H. denied having specific knowledge of the details of the scheme, she
knew it was “bad” and received $3,500 in cash as payment for her participation.
Furthermore, a sum of money exceeding $10,000 was found hidden within the vehicle
she drove. The status of those criminal proceedings is unknown.
Upon trial of the termination suit, the court found four statutory grounds warranting
termination of M.H.’s parental rights. It also found that termination was in the children’s
best interests. Through a single issue, M.H. contends that the evidence was legally and
factually insufficient to support the best interest finding. We affirm.
Legal and Factual Sufficiency to Support Best Interest
M.H. specifically contends that the Department:
took the children into custody over a pending criminal charge
and kept [M.H.] from having a traditional parent-child
relationship. The children appeared to be well taken care of
by [M.H.]. Further, [M.H.] was residing in Arizona throughout
the length of the case and tried to comply with the service plan
to the best of her ability. She also maintained contact with the
caseworker on a regular basis. [M.H.] attempted to complete
several services while in Texas but was unsuccessful in doing
so due to a lack of availability. In addition, [M.H.] also made
attempts to contact the children but was also unsuccessful in
accomplishing those interactions due to a lack of cooperation
and planning. Further, it could be implied that there is no
greater time of need of a mother by her children than at this
young stage in life. In addition, [M.H.] did work through some
of the services required by [the Department] in order for family
reunification to occur, however it was difficult for her to comply
completely due to her residence in another state.
Furthermore, she purportedly was trying to maintain a relationship with her children and
the Department was hindering that relationship.
In reviewing whether the evidence is legally and factually sufficient to support
termination, we apply the standards of review described in In re K.M.L., 443 S.W.3d 101,
112-13 (Tex. 2014), and In re K.V., No. 07-16-00188-CV, 2016 Tex. App. LEXIS 11091,
at *6-8 (Tex. App—Amarillo Oct. 11, 2016, no pet.) (mem. op.). So too do we compare
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the evidentiary record to the factors itemized in Holley v. Adams, 544 S.W.2d 367, 372
(Tex. 1976) when assessing whether termination favors the best interests of the children.
Again, the trial court found that the evidence established four statutory grounds
warranting the termination. They involved 1) M.H. knowingly placing or allowing the
children to remain in conditions or surroundings which endangered the physical or
emotional well-being of the children, TEX. FAM. CODE ANN. § 161.001(b)(1)(D); 2) M.H.
engaging in conduct or knowingly placing the children with persons who engaged in
conduct which endangered the physical or emotional well-being of the children, id.
§ 161.001(b)(1)(E); 3) M.H. failing to support the children within her ability, id.
§ 161.001(b)(1)(F); and 4) M.H. failing to comply with the provisions of a court order that
specifically established the actions necessary for her to obtain the return of the children.
See id. § 161.001(b)(1)(O). That each ground was supported by both legally and
factually sufficient evidence is not something M.H. questions on appeal. And, in opting
to forgo such an attack on those findings, M.H. tacitly conceded that sufficient evidence
supported them. See In re T.C., No. 07-18-00080-CV, 2018 Tex. App. LEXIS 6769, at
*13 (Tex. App.—Amarillo Aug. 23, 2018, pet. denied) (mem. op.). More importantly, the
evidence relevant to those grounds may be considered in assessing the best interests of
the children. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
So, our analysis begins with her tacit concession that the record evidence
established she had endangered the children, failed to support them, and failed to comply
with court orders conditioning the return of her children to her. To that we add evidence
of both children being in the car and law enforcement testimony that drug couriers
sometimes take children with them to use as decoys to minimize law enforcement
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suspicions. Furthermore, the vehicle in question contained an inordinate amount of fast
food wrappers suggesting that such was the quality of food being fed the children during
the venture. Other evidence indicated that M.H. carried no change of clothing for the
children or diaper bag despite the length of the venture and age of the children.
Once the children were removed, conditions were imposed upon M.H. to secure
their return. One was that she seek counseling; she did not. Another was that she pay
monthly child support; she did not. Another was that she maintain stable housing and
employment; though M.H. purportedly complied, she never provided documentation
verifying this. Another was that she complete a drug and alcohol assessment; the
caseworker never received documentation showing that was done. Regarding other
requirements, M.H. asserted that she was unable to perform them since she was living in
Arizona. Yet, the caseworker testified that those services could be performed there at
her expense but proof of their performance would be needed. No proof of their
performance was forwarded to the caseworker.
Regarding M.H.’s living conditions, she apparently lived with her mother who was
“validated” as engaging in physical abuse. Apparently, the children’s father also
physically abused M.H. and who was incarcerated at the time the children were removed
from her. And despite being served with process regarding the termination proceeding,
the children’s father contacted no one involved in the case.
Since their removal, M.H. has had only one physical visitation with the children.
Yet, she had communicated with them through “Skype” about seven times. The evidence
also indicates that M.H. appeared for a portion of the termination trial but left before its
completion. She had not been heard from since.
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At time of trial, the children lived in two separate foster homes, though the homes
were geographically near each other. They adjusted well to their environments, slept
well, and maintained good appetites. Other evidence revealed that the eldest (E.)
underwent speech therapy which he completed but will undergo continued monitoring.
He also is enrolled in school and is said to learn very quickly.
A biological aunt residing in Arizona expressed her desire to adopt or care for the
children. According to a CASA witness, this aunt is willing to “do whatever it takes . . .
she wants those kids.” At the time of the hearing, the aunt was gainfully employed as a
“branch manager at an institution that takes care of disabled children” and was certified
to take care of such children. A home study was done or will be done to determine if she
qualifies to adopt the children.
From the foregoing, we conclude that the entirety of the record before us contains
evidence both legally and factually sufficient to support the finding that termination of
M.H.’s parental rights was in the best interests of the children.
Per Curiam
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