in the Interest of D.R.M., J.Y.M., D.M.M., and D.N.M., Children ( 2017 )

NUMBER 13-17-00320-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
In the Interest of D.R.M., J.Y.M., D.M.M., and D.N.M., minor children
On appeal from the 430th District Court of
Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellant J.M. (“Father”) appeals the trial court’s order terminating his parental
rights to D.R.M., J.Y.M., D.M.M., and D.N.M.1 On appeal, Father argues that: (1) the
termination proceedings violated the Fourth, Fifth, and Fourteenth Amendments of the
U.S. Constitution, see U.S. CONST. amend. IV, V, XIV; (2) the evidence was legally and
factually insufficient to support termination based on an act or omission under §
161.001(b)(1), see TEX. FAM. CODE ANN. § 161.001(b)(1)(A), (C), (N), (O) (West, Westlaw
1 To protect the identity of the children, we refer to the children, appellant, and other persons
involved by their initials. See TEX. R. APP. P. 9.8(b).
through 2017 1st C.S.).; and (3) the evidence was legally and factually insufficient to
establish that termination was in the best interests of the children. See TEX. FAM. CODE
ANN. § 161.001(b)(2). We affirm.
I. BACKGROUND
Adan Guzman, the Departments’ primary caseworker throughout this case,
testified on behalf of the Department concerning the underlying, and undisputed, facts.
D.R.M., J.Y.M., D.M.M., and D.N.M. are the children of Father and S.M. (Mother).2 In
May of 2013, D.R.M. and J.Y.M. were removed from Father and Mother’s care due to
medical neglect. At the time of removal, D.R.M. had a radius fracture, and J.Y.M. was
underweight, had four back left rib fractures, a bruised liver, and a broken wrist. Father
and Mother did not offer any explanations for the children’s injuries. J.Y.M. was sent to
Corpus Christi to receive Early Childhood Intervention Services, and D.R.M. was treated
by child abuse specialists for “neglect and physical abuse.” Investigations also revealed
that Mother had a problem with cocaine use and a history of burglary.
In August 2014, the trial court awarded permanent managing conservatorship over
D.R.M. and J.Y.M. to the children’s paternal grandmother (Grandmother). Father and
Mother retained visitation rights. In February of 2015, the Department of Family and
Protective Services (the Department) filed its original petition to terminate Mother’s and
Father’s parental rights in regard to D.R.M. and J.Y.M. Just one month later, D.M.M. and
D.N.M., twins, were born prematurely to Father and Mother. In April of 2015, the
Department filed a petition to terminate Father’s and Mother’s parental rights with respect
to the twins, and in July of 2015, the two termination cases were consolidated. Guzman
testified that the twins remained in the neonatal intensive care unit (NICU) because they
2 Mother is not a party to this appeal.
2
were born prematurely. However, he also related that Mother left the hospital after she
was discharged without ever visiting the twins even though Mother claims she attempted
to visit the twins. Likewise, Father did not visit the twins in the NICU. The Department
filed a temporary order to have the twins removed from Father and Mother’s custody and
relocated to San Antonio. Guzman testified that even though Father was offered
assistance and transportation to visit the twins more frequently, Father only visited his
children a few times over the next several years.
In January of 2016, Grandmother surrendered the two older children to the Child
Protective Services (CPS) office in Edinburg because she claimed that she was unable
to continue caring for the children due to her health. In April of 2016, an order terminating
Father’s parental rights to all four of his children was entered by an associate judge based
on subsections 161.001(b)(1)(A), (C), (N), and (O). Father requested a de novo hearing
from the associate judge’s order, which the trial court denied. This Court reversed that
decision and remanded to the trial court for a de novo trial. In re A.A.T., D.R.M., J.Y.M.,
D.M.M., and D.N.M., No. 13-16-00269-CV, 2016 WL 8188946 (Tex. App.—Corpus Christi
Aug. 25, 2016, no pet.) (mem. op.). The de novo trial occurred on June 12, 2017. The
trial court terminated Father’s parental rights as to all four children. This appeal ensued.
II. CONSTITUTIONAL CHALLENGE
In his first issue, Father argues that his Constitutional rights were violated. He
asserts that Guzman deliberately misled the trial court and gave a false impression of the
case by omitting certain important details, even though Father concedes that “[Guzman]
mainly testified truthfully.” More specifically, he argues that: (1) conflicting evidence was
presented at trial; (2) the Department’s petition was overly broad and thus did not give
Father adequate notice of what the grounds for termination were, in violation of the Fifth
3
and Fourteenth Amendments; and (3) the removal of the twins was an unlawful seizure
under the Fourth Amendment. U.S. CONST. amend. IV, V, XIV.
Generally, a party must make a timely objection to the trial court in order to
preserve error for appeal. In re B.L.D. & B.R.D., 113 S.W.3d 340, 350 (Tex. 2003). This
is true for parental termination cases as well as constitutional challenges. See id.; Brewer
v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, pet. denied).
Although Father raises several constitutional issues on appeal, the record reveals
that he failed to present any of these objections to the trial court below. Accordingly, the
trial court had no opportunity to correct any potential errors before rendering its verdict.
In re B.W., 99 S.W.3d 757, 760 (Tex. App.—Houston [1st Dist.] 2003). Father has failed
to preserve his constitutional challenges for appellate review. In re B.L.D., 113 S.W.3d
at 350. Additionally, Father continually refers to the record of the first trial to support his
constitutional challenges on appeal. However, the transcript from the previous
termination trial was not introduced as evidence at the de novo trial. Since the transcript
of the first trial was not introduced during the de novo trial, evidence from the first trial
could not be considered by the trial court in the de novo trial. Green v. Kaposta, 152
S.W.3d 839, 841 (Tex. App.—Dallas 2005, no pet.).
However, even assuming that Father preserved his constitutional challenges, we
find that they hold little merit. For example, Father argues that the pleadings were so
broad as to deprive him of due process because they did not give him adequate notice of
what he was being accused of. However, all of the Department’s petitions and
subsequent amended petitions alleged the very grounds upon which his parental rights
were ultimately terminated. Furthermore, Father’s parental rights were terminated
pursuant to 161.001(b)(1), subsections (N) and (O) in the first trial in 2016. So it is difficult
4
to argue that Father did not know that the Department would proceed to argue the same
grounds in the 2017 de novo trial. Lastly, concerning the alleged unconstitutional removal
of his children, specifically the twins, the trial court entered a temporary order with respect
to D.R.M. and J.Y.M. in May of 2015 and another temporary order concerning the twins
D.M.M. and D.N.M. in July of 2015. “A trial court’s decision to allow the Department to
maintain custody of a child following an adversary hearing is reviewable, if at all, through
a petition for writ of mandamus.” In Interest of J.D.S., 494 S.W.3d 387, 389 (Tex. App.—
Waco 2015, no pet.). Father did not challenge the initial removal of the children in the
trial court and he did not file a writ of mandamus. Also, the children’s initial removal has
been superseded by the entry of a final order of termination. See id. Therefore, we
overrule Father’s first issue.
III. TERMINATION UNDER SECTION 161.001(b)(1)
In issues two, three, four, and five, Father claims that the evidence was legally and
factually insufficient to support the trial court’s finding that Father committed any of the
respective statutory grounds for termination alleged by the Department. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(A), (C), (N), (O).
A. Standard of Review
Parental rights may be terminated only upon proof of clear and convincing
evidence that the parent has committed an act prohibited by section 161.001(b)(1) of the
Texas Family Code, and that termination is in the best interest of the child.” In re E.A.G.,
373 S.W.3d 129, 140 (Tex. App.—San Antonio 2012, pet. denied). Clear and convincing
evidence is “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.” TEX. FAM. CODE ANN. § 101.007
(West, Westlaw through 2017 1st C.S.).
5
When the legal sufficiency of the evidence is challenged in a parental termination
case, we look at all the evidence in the light most favorable to the finding to determine
whether a reasonable factfinder could have formed a firm belief or conviction that the
finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Accordingly, we
assume the finder of fact resolved all disputed facts in favor of its finding, if a reasonable
factfinder could do so; likewise, we disregard all evidence that a reasonable factfinder
could have disbelieved. Id. When the factual sufficiency is challenged in a parental
termination case, we also consider the conflicting evidence. Id. If the disputed evidence
is so “significant” that it would prevent a reasonable factfinder from forming a firm belief
of the findings, then the evidence is factually insufficient. Id.
B. 161.001(b)(1)(N)
We address Father’s fourth issue—challenges to the sufficiency of the evidence
supporting a finding under 161.001(b)(1)(N)—first because it is dispositive. See TEX. R.
APP. P. 47.1.
1. Applicable Law
Subsection N provides that:
The court may order termination of the parent-child relationship if the court
finds by clear and convincing evidence that the parent has constructively
abandoned the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services or an authorized agency for not less than six months, and:
(i) the Department or authorized agency has made reasonable
efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant
contact with the child; and
(iii) the parent has demonstrated an inability to provide the child
with a safe environment.
See TEX. FAM. CODE ANN. § 161.001(b)(1)(N). “Reasonable efforts” to reunite the parent
6
and a child can be satisfied through the preparation and administration of a service plan.
In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.). Performing
evaluations of family members’ homes for possible placement for children also supports
a finding of reasonable efforts to return a child to an incarcerated parent. See id.
Constructive abandonment may be supported by proof that a parent infrequently
visited a child while in the Department’s custody. In re H.R., 87 S.W.3d 691, 699 (Tex.
App.—San Antonio 2002, no pet.). And in considering whether a parent has
demonstrated the ability to provide the children with a safe environment, a factfinder may
consider the parent’s participation in services, lack of stable housing, missed
opportunities for counseling and psychological evaluations, and past substance abuse.
M.C. v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305, 309 (Tex. App.—El
Paso 2009, pet. denied).
2. Analysis
We agree with the Department that the record contains legally and factually
sufficient evidence to support termination under subsection N. The record establishes
that the Department created and filed a service plan for Father. The plan required him
to: (1) participate and complete substance abuse assessment and any recommended
treatment; (2) participate in random drug tests at least once a month; (3) participate in
parent/child visits twice a week for two hours; (4) pay child and medical support in the
amount of five dollars per month; (5) participate in individual counseling leading to family
counseling; (6) attend parenting classes; and (7) complete a psychological evaluation.
Guzman testified that Father did complete at least two drug screenings.
In one of the tests, he tested negative, and in the other he tested positive for
cocaine. Guzman further testified that Father failed to submit to a drug and alcohol abuse
7
assessment, did not participate in a psychological assessment, did not attend any
parenting classes, and did not go to any individual or family counseling. Father argues in
response that for a large portion of the case below, he was incarcerated, which hindered
his ability to follow the service plan. Additionally, when he was not incarcerated, he
alleges that he had no mode of transportation, was frequently homeless, and had difficulty
walking on his feet. However, Guzman testified that Father was offered assistance and
transportation to complete all of his court-ordered services but did not make use of such
assistance. Also, according to Guzman, even though Father was incarcerated for
extended periods of time, services and transportation were available to him when he was
released, and yet Father still did not participate in any services. Guzman also claimed
that he attempted to maintain monthly contact with Father by telephone. And, as we
discuss below, Guzman performed a home study for Father’s father (Grandfather) for
possible placement of the children. Ultimately, placement was not recommended based
on insufficient income and inadequate sleeping arrangements. Thus, based on the
Department’s preparation of a service plan and performance of a house evaluation, the
record supports the trial court’s determination that the Department made reasonable
efforts to reunite Father with his children. See In re N.R.T., 338 S.W.3d at 674.
Evidence at the trial indicated Father has not seen his children more than a few
times since the Department became involved. Guzman testified that Father made little to
no effort to regain custody of his children after Grandmother was named managing
conservator. Father claims that he and Mother attempted to visit the twins while they
were in the NICU but were turned away because Mother was sick. However, on cross-
examination, the attorney ad litem responded, “No, I don’t recall that. The medical staff
just told me that [Mother] had not been there for the children.” After the twins were
8
transported from the NICU to San Antonio in July of 2015, Father did not make any
contact with the twins. The attorney ad litem testified that over the two years since their
birth, Father has only had a few hours of contact with the twins. Guzman testified that
despite being offered help and transportation, Father put forth little effort to visit any of his
children. Father did not challenge the original removal of his children and he did not
appear at the emergency hearing when Grandmother returned the children to the CPS.
The record supports the trial court’s determination that Father constructively abandoned
his children while they were in the Department’s custody and that he failed to visit or
maintain significant contact with his children. See In re H.R., 87 S.W.3d at 699.
Guzman and the attorney ad litem both testified that Father was unable to provide
a safe and stable place for the children to reside. Father concedes that he was homeless
and frequently slept in public parks; however, Father argues that he offered his
Grandfather as a possible residence for the children. A home study was performed
sometime in 2016, and placement with Grandfather was not recommended due to
insufficient income and inadequate sleeping arrangements: Grandfather lived in a three-
bedroom apartment with his wife and five children. Grandfather confirmed that he was
notified mid-2016 that he was not approved for placement, but Grandfather did not contact
Guzman to discuss the results until 2017. When asked if Grandfather would contact law
enforcement if Father ever attempted to violate a court order, he stated that he would not.
Furthermore, in determining whether Father had provided the children with a safe
environment, the trial court could consider Father’s lack of participation in services, his
lack of stable housing, and Father’s missed opportunities for counseling. See M.C., 300
S.W.3d at 309. Therefore, we find that the record supports the trial court’s finding that
Father was unable to provide the children with a safe environment. See id.
9
Based on the above evidence, we conclude that the evidence is legally and
factually sufficient to support termination under 161.001(b)(1)(N). See In re J.O.A., 283
S.W.3d at 344.
C. Subsections 161.001(b)(1)(A), (C), (O)
Having found that the evidence was legally and factually sufficient under
subsection (N), we need not address the sufficiency of the evidence under subsections
(A), (C), or (O) because the Department only needs to prove one statutory act or omission
under 161.001(b)(1). See In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); see also TEX.
R. APP. P. 47.1. Therefore, we overrule Father’s second, third, and fifth issues.
IV. BEST INTERESTS OF THE CHILDREN
In his sixth issue, Father argues that the evidence was legally and factually
insufficient to support the finding that termination was in the children’s best interests. See
TEX. FAM. CODE ANN. § 161.001(b)(2).
A. Standard of Review
In reviewing a best interest finding, we consider the non-exclusive Holley factors.
See In re E.N.C., 384 S.W.3d at 807 (citing Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976)). These factors include: (1) the child's desires; (2) the child’s emotional and
physical needs now and in the future; (3) any emotional and physical danger to the child
now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the
programs available to assist the individuals seeking custody to promote the best interest
of the child; (6) the plans for the child by the individuals or agency seeking custody; (7)
the stability of the home or proposed placement; (8) the parent’s acts or omissions which
may indicate that the existing parent-child relationship is improper; and (9) any excuse
for the parent’s acts or omissions. Id.
10
B. Analysis
1. The Desires of the Child
In determining the children’s desires, the factfinder can consider evidence that the
children spent minimal time in the presence of the parent and that no emotional bond
exists between the children and the parent. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). Guzman and the attorney ad litem for the children
testified that Father has had minimal contact with the children throughout their lives.
When Grandmother returned the two older children to CPS, Father did not appear at the
removal hearing. When the twins were born, Father did not appear at the hospital and
he only visited the children twice after that in San Antonio, despite being informed that
transportation was available for him to visit his children more often. By the time of the
trial, the children did not mention Father. This factor weighs in favor of termination. See
id.
2. The Present and Future Emotional and Physical Needs of the Children;
the Emotional and Physical Danger to the Children Now and in the Future
A factfinder may infer that a parent’s past inability to meet a child’s physical and
emotional needs at the time the child was in the parent’s custody may indicate the parent’s
future inability to meet the child’s physical and emotional needs if the child is returned to
the parent. D.O. v. Tex. Dep’t of Human Servs., 851 S.W.2d 351, 356 (Tex. App.—Austin
1993, no writ). Also, “permanence is a paramount consideration for the child’s present
and future physical and emotional needs.” In re J.D., 436 S.W.3d 105, 118 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). Thus, a parent’s inability to provide a stable home,
remain gainfully employed, or comply with a court-ordered service plan supports a finding
that termination is in the child’s best interest. In re D.C., 128 S.W.3d 707, 717 (Tex.
App.—Fort Worth 2004, not pet.).
11
The record indicates that D.R.M. and J.Y.M. were first removed due to medical
neglect. D.R.M. had a radius fracture and J.Y.M. had four fractured ribs, with no
consistent explanations as to what caused these injuries. When they resided with
Grandmother, Father provided no support and rarely visited the children. Father admitted
to being homeless and being unable to provide stable housing for the children. The record
reflects that Father did not comply with the court-ordered service plan, and Father does
not deny it. Guzman testified that Father had no empathy for the children and that he
lacked any serious attachment to them. In sum, the record established that Father
exposes his children to emotional and physical danger and that he cannot provide for
their emotional and physical needs now and in the future. See id. The second and third
Holley factors weigh in favor of termination.
3. Parental Abilities of the Individuals Seeking Custody
The fact that a parent has poor parenting skills and “was not motivated to learn
how to improve those skills” is evidence supporting a finding that termination is in the
child’s best interest. Wilson v. State, 116 S.W.3d 923, 925 (Tex. App.—Dallas 2003, no
pet.). Thus, based on Father’s lack of contact with the children, repeated homelessness,
failure to complete services, continued criminal activity and incarceration, and failure to
attend any counseling classes, the trial court could have concluded that the Father has
poor parenting skills and is not motivated to learn how to improve those skills. See id.
The fourth Holley factor weighs in favor of termination.
4. Programs Available to Assist the Individuals Seeking Custody to Promote
the Best Interest of the Child
The record established that parenting classes and counseling were made available
to Father. Despite being offered transportation, Father did not attend any classes or
counseling. The fifth Holley factor favors termination.
12
5. Plans for the Child of the Individuals or the Agency Seeking Custody;
Stability of the Home or Proposed Placement
Father offered no insight to his plans for the children. He did not state an intent to
change his behavior significantly. Guzman and the attorney ad litem testified that the
children have been doing very well since their removal from Father’s custody. The sixth
Holley factor weighs in favor of her termination.
As discussed above, Father has frequently been homeless and does not have a
permanent residence. The seventh factor weighs in favor of termination. See id.
6. The Acts or Omissions of the Parent that May Indicate that the Existing
Parent-Child Relationship is not a Proper One; Any Excuse for the Acts
or Omissions of the Parent
The Department argues that the record contains several acts and omissions which
indicate that the relationship between Father and the children might be improper. We
agree. Evidence considered under the other Holley factors is also relevant in analyzing
the eighth and ninth factors. See In re D.W., 445 S.W.3d 931. As we explained in greater
detail under the second and third factors, the two older children were removed initially
because of unexplained medical injuries. Additionally, Father has only visited his twins a
couple of hours over the last several years. Father does not deny that he completely
failed to attend any of the services designed to help him improve his parenting skills and
have the children returned to him.
Regarding any excuses for his omissions or acts, Father offers none other than his
incarceration and lack of reliable transportation. However, Guzman testified that
transportation was made available to Father and that there were periods of time when
Father was not incarcerated, yet Father still failed to complete any services. Overall,
Father gives no explanation as to how his care of the children would improve going
forward. The eighth and ninth factors weigh in favor of termination.
13
C. Summary
Looking at the evidence of the Holley factors in the light most favorable to the trial
court’s verdict, we conclude that the evidence is legally sufficient because a reasonable
trier of fact could form a firm belief or conviction that termination was in the best interest
of the children. See In re J.O.A., 283 S.W.3d at 344. Likewise, we conclude the evidence
is factually sufficient because the disputed evidence regarding the Holley factors is not so
significant it would prevent a reasonable factfinder from forming a firm belief or conviction
that termination was in the children’s best interests. See id. We overrule Father’s sixth
issue.
V. CONCLUSION
We affirm the trial court’s judgment.
NORA LONGORIA
Justice
Delivered and filed the
28th day of December, 2017.
14