in the Interest of I.L.M. , 464 S.W.3d 421 ( 2015 )

Opinion issued March 17, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00798-CV
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IN THE INTEREST OF A.A.M. AND J.M., children
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2011-00219J
&
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NO. 01-14-00801-CV
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IN THE INTEREST OF I.L.M., a child
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2013-04476J
OPINION
In this consolidated parental termination case, the Department of Family and
Protective Services requested termination of the father’s parental rights to his three
children, A.A.M., J.M., and I.L.M. The trial court granted the Department’s
request. On appeal, the father contends that the evidence is legally and factually
insufficient to support termination of his parental rights. He further contends that
the trial court erred when it considered evidence of conduct adduced in connection
with the Department’s earlier, unsuccessful request for termination of his rights.
Finding no error, we affirm.
Background
In 2010, the father resided with his sons A.A.M., born in December 2006,
and J.M., born in December 2008, together with his sons’ mother. Child Protective
Services received a report of violence in the home, and specifically that the father
was using drugs and physically harming the children. In December 2010, a
caseworker investigated the residence, finding inoperative kitchen appliances, little
furniture, and no food. During the visit, the father became angry and told the
caseworker to take the children. He admitted to smoking marijuana and tested
positive for marijuana in a drug test administered the following day. Over the next
three years, the father tested positive for marijuana and cocaine multiple times. He
also was intermittently incarcerated prior to the children’s removal.
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In 2011, the Department petitioned to become the temporary managing
conservator of A.A.M. and J.M. and sought to terminate the father’s parental
rights. In 2012, the trial court appointed the Department as sole managing
conservator, but it did not grant the Department’s termination request. In August
2012, the Department placed A.A.M. and J.M. with their current foster placement,
and in January 2014, it again moved to terminate the father’s and mother’s parental
rights.
In December 2011, the father and mother had another child, I.L.M. When
I.L.M. tested positive for marijuana at birth, the Department received a referral. In
2012, in a separate proceeding, the Department petitioned to be appointed
temporary managing conservator of I.L.M. In December 2012, the trial court
appointed I.L.M.’s grandmother as sole managing conservator, and the mother and
father as possessory conservators. In August 2013, the Department petitioned to
modify the order and requested that it be appointed temporary managing
conservator. It later amended to seek termination of the father’s parental rights.
The trial court consolidated the cases. In September 2014, after a bench
trial, the trial court terminated the parental rights of the father and mother. The
father appeals the trial court’s termination order.
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Discussion
Standard of Review
A parent’s right to the care, custody, and control of his child is a liberty
interest protected under the Constitution, and we strictly scrutinize termination
proceedings on appeal. Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct.
1388, 1397 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and
convincing evidence must support an involuntary termination. Holick, 685 S.W.2d
at 20 (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92). Clear and
convincing evidence is “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.” TEX. FAM. CODE ANN. § 101.007 (West 2014).
When determining legal sufficiency in a parental-rights termination case, we
review “all the evidence in the light most favorable to the finding to determine
whether a reasonable trier of fact could have formed a firm belief or conviction
that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We
assume that the factfinder resolved disputed facts in favor of the judgment if a
reasonable factfinder could have done so. Id. We disregard “evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” Id.
If a court determines that no reasonable factfinder could form a firm belief or
conviction that the matter that must be proven is true after conducting its legal-
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sufficiency review, the court must conclude that the evidence is legally
insufficient. Id.
In determining factual sufficiency, we consider the entire record, including
disputed evidence, to determine “whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction” about the truth of the allegation
sought to be established. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).
“If, in light of the entire record, the disputed evidence that a reasonable factfinder
could not have credited in favor of the finding is so significant that a factfinder
could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.” J.F.C., 96 S.W.3d at 266.
To prevail in a termination case, the Department must establish that one or
more of the acts or omissions enumerated under Texas Family Code
section 161.001(1) occurred and that the termination is in the best interest of the
children, pursuant to section 161.001(2). TEX. FAM. CODE ANN. § 161.001. In this
case, the father challenges the trial court’s findings that he endangered the children
and that he failed to comply with the court-ordered family services plan. He does
not challenge the trial court’s finding that termination is in the best interest of the
children.
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Analysis
1. Admission of Evidence
The father first contends that the Department improperly relied on evidence
introduced in prior termination proceedings, including his drug use and criminal
history, because the trial court already heard and decided those allegations and
denied the request to terminate the father’s parental rights. Pursuant to Texas
Family Code section 161.004(a), however, a court “may terminate the parent-child
relationship after rendition of an order that previously denied termination” if the
circumstances of the child, parent, conservator, or other party affected by the
previous order have “materially and substantially changed” since the date of the
order. TEX. FAM. CODE ANN. § 161.004(a). And section 161.004(b) expressly
authorizes the trial court to consider evidence presented at a previous hearing in a
later termination proceeding for the same child. Id. § 161.004(b).
The father acknowledges the provisions of section 161.004, but argues that
the Department did not plead for termination based on changed circumstances, but
instead requested termination under the more general governing statute found in
section 161.001. Citing In re S.M.R. and Vasquez v. Texas Department of
Protective & Regulatory Services, the father argues that consideration of his earlier
conduct was error because he did not receive adequate notice that the Department
would rely on it. See In re S.M.R., 434 S.W.3d 576 (Tex. 2014), and Vasquez, 190
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S.W.3d 189 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). In S.M.R., the
Texas Supreme Court approved courts of appeals decisions, holding that
“termination can only be upheld on a ground that was both pleaded by the party
seeking termination and found by the trier of fact.” 434 S.W.3d at 581 (quoting In
re K.G., 350 S.W.3d 338, 345–46 (Tex. App.—Fort Worth 2011, pet. denied).
Citing In re D.N. and In re K.G., the father argues that a trial court may terminate
parental rights based on evidence introduced in prior termination proceedings only
if the petitioner pleads section 161.004. See In re D.N., 405 S.W.3d 863, 870 (Tex.
App.—Amarillo 2013, no pet.); K.G., 350 S.W.3d at 352.
The Department responds that it pled the elements of section 161.004,
including that the circumstances of a party affected by the previous order had
materially and substantially changed; thus, the trial court’s reliance on the father’s
entire course of conduct was proper. It further responds that the trial court
specifically found that the children’s circumstances had changed.
We agree with the Department. With regard to the pleadings, although, as
the father observes, the Department did not expressly name the statute by its code
number in its petitions, it pleaded the statutory elements for modification of an
earlier order, including materially changed circumstances. Both live petitions state
that the “circumstances of the children, a conservator, or other party affected by the
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order have materially and substantially changed since the date of the rendition of
the order,” and that the “orders are in the best interest of the children.”
The father observes that the Department’s allegations are contained within
the conservatorship section of the petitions, not the termination section. But he did
not specially except to the Department’s petitions. Broadly construing the
petitions in the absence of a special exception, the Department’s pleadings notified
the father that his earlier conduct would be at issue. See Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Because the father did not
specially except to the pleadings, he waived any complaint about the perceived
lack of notice from the omission of a specific reference to section 161.004 in the
pleadings. See Att’y Gen. v. Lavan, 833 S.W.2d 952, 954 (Tex. 1992) (“[B]ecause
the record does not show that [respondent] complained of the breadth of, or any
ambiguity in the State’s pleadings, we hold that any failure of the petition to
specifically cite the State’s reliance upon [the statute] is waived.”) (citing TEX. R.
CIV. P. 90).
Additionally, the father did not object at trial to evidence of his earlier drug
test results. Because he did not object to the trial court’s consideration of evidence
about events that occurred prior to the previous orders denying termination, he may
not raise this challenge for the first time on appeal. See TEX. R. APP. P. 33.1; In re
K.A.F., 160 S.W.3d 923, 928 (Tex. 2005).
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Finally, the cases on which the father relies are distinguishable. In In re
S.M.R., the Texas Supreme Court declined to supply omitted grounds in a parental-
rights termination case based on the pleadings where the trial court had declined to
find the ground as a basis for termination in the judgment. 434 S.W.3d at 581–82.
Similarly, in Vasquez, we declined to uphold a trial court’s parental-rights
termination order on grounds different from those stated in the final order. 190
S.W.3d at 194. In contrast to these cases, here the trial court found in its
termination orders that the circumstances of the parties had materially and
substantially changed since its prior orders and that evidence relating to events
occurring before the prior orders was admissible pursuant to section 161.004.
Accordingly, we hold that the trial court properly considered evidence presented in
earlier termination proceedings.
2. Endangerment
Under section 161.001, one of the predicate findings for a parental-rights
termination is satisfied if the parent has “engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(1)(E). To
“endanger” a child means to expose to loss or injury or to jeopardize. Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although
endangerment means “more than a threat of metaphysical injury or the possible ill
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effects of a less-than-ideal family environment, it is not necessary that the conduct
be directed at the child or that the child actually suffers injury.” Id. Courts may
consider parental conduct that did not occur in the child’s presence, including
conduct before the child’s birth. Walker v. Tex. Dep’t of Family & Protective
Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Drug abuse and its effect on the ability to parent can be part of an
endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
Illegal drug use creates the possibility that the parent will be impaired or
imprisoned and thus incapable of parenting. Walker, 312 S.W.3d at 617. When a
parent’s imprisonment demonstrates a deliberate course of conduct, it too qualifies
as endangering conduct. Id. (citing Avery v. State, 963 S.W.2d 550, 553 (Tex.
App.—Houston [1st Dist.] 1997, no writ). Drug use and the imprisonments
relating to it harm the physical and emotional well-being of a child. Id. (citing In
re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)). In
addition, abusive and violent conduct by a parent in a family relationship may
endanger a child’s well-being. Id. (citing In re B.R., 822 S.W.2d 103, 106 (Tex.
App.—Tyler 1991, writ denied)).
The Department presented evidence of the father’s criminal record both
before and after the birth of his children. Although many of these convictions
occurred before the birth of these children, several did not. Notably, in 2010, he
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was convicted for an assault of a family member. As late as 2013, he was
convicted of theft by check.
The father also tested positive for marijuana and cocaine multiple times from
2011 to 2014, during the period the children were in the Department’s care. In
January 2011 and January 2012, he tested positive for marijuana and cocaine. In
November 2011, he tested positive for cocaine. In March 2012, he tested positive
for cocaine and marijuana. During May and September 2012; March, August, and
October 2013; and February 2014, he tested positive for cocaine.
The father observes that he merely exercised visitation during these periods
of positive drug tests and criminal activity; he was not the custodial parent.
Nevertheless, because they significantly harm the parenting relationship, criminal
offenses and drug activity can constitute endangerment even if the criminal
conduct transpires outside the child’s presence. See Boyd, 727 S.W.2d at 533;
Walker, 312 S.W.3d at 617; J.O.A., 283 S.W.3d at 345. The trial court also heard
evidence of the father’s conviction for assault, which involved family violence,
during his limited contact with his children before the Department’s involvement.
Evidence of the father’s abuse of a family member permits an inference that the
person will continue abusive behavior in the future. See Walker, 312 S.W.3d at
617. Based on the evidence adduced at the hearing, the trial court reasonably
could have concluded that the father’s continued pattern of drug use, even after the
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Department’s involvement, displayed a voluntary, deliberate, continued, and
conscious course of endangering conduct, establishing materially changed
circumstances from those present when it signed its initial 2012 orders. See id.
Accordingly, we hold that the evidence is legally sufficient to support its finding of
endangerment. See J.F.C., 96 S.W.3d at 266; Walker, 312 S.W.3d at 617; J.O.A.,
283 S.W.3d at 345.
The father challenged the Department’s evidence of his positive drug test
results by cross-examination of the Department’s expert witness. The witness
agreed in general terms that errors can occur in drug testing. He also
acknowledged that the testing samples are typically destroyed in 7 days. The
father did not present evidence of any error relating to his specific drug test results.
Viewing the evidence in a light favorable to the fact finder, we conclude that the
contrary evidence at trial is not so overwhelming as to undermine the trial court’s
firm conviction that the father’s conduct endangered the children. See J.F.C., 96
S.W.3d at 266. Accordingly, we hold that the evidence is factually sufficient to
support the trial court’s finding. See id. Because the evidence supports the trial
court’s endangerment findings, we need not reach the father’s arguments
challenging the trial court’s finding that he failed to comply with the court-ordered
family services plan.
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Conclusion
We hold that the trial court did not err in considering evidence of events
prior to the initial orders denying parental termination. We further hold that the
evidence was legally and factually sufficient to support the father’s parental-rights
termination based on child endangerment. The trial court’s finding that
termination is in the children’s best interests is unchallenged on appeal.
Accordingly, we affirm the order of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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