in the Interest of I.L.M. ( 2015 )


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