in the Interest of A.M.M., M.A.M., K.A.M., J.G.M., J.E.M., and J.I.M.P., Children ( 2021 )

NUMBER 13-21-00114-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF A.M.M., M.A.M., K.A.M., J.G.M., J.E.M.,
AND J.I.M.P., CHILDREN
On appeal from the 138th District Court
of Cameron County, Texas.
DISSENTING MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva
Dissenting Memorandum Opinion by Justice Silva
By establishing what essentially amounts to an absolute right to an interpreter, the
majority discourages parents from taking timely steps to protect their own due process
interests and encourages them to delay until the last minute to raise an issue with the trial
court, effectively impairing the ability of trial courts and the Department to alleviate the
deficiency. Consequently, parents in State-initiated termination suits now have a
mechanism by which they can win by default: wait until the dismissal date to raise a due
process concern and get their children back when jurisdiction expires because trial could
not commence on or before the dismissal date. Such mechanism may be intended to
protect the due process rights of the parents, but it ultimately tramples on the due process
rights of the children and the State’s fundamental interest in protecting the children.
Therefore, I respectfully dissent.
I. BACKGROUND
I believe the majority’s recitation of the relevant background is accurate; however,
I would like to add some additional information. All the documents filed in this case,
including the original and amended petitions, supporting affidavits, and plans of service,
were in English. This includes the family plan of service signed by F.M., filed with the
court, and adopted as an order of the court. 1 The record indicates that the family plan of
service for adjudicated father R.C. was translated into Spanish for his benefit. Further,
there is no evidence from the record that F.M. requested a translator for any of the other
hearings throughout the suit, but a docket notation reflects that on June 16, 2020, an
interpreter was present for R.C.
II. DUE PROCESS
By her first two issues, F.M. argues her due process rights were violated when
(1) the trial court failed to have an interpreter available to her for the entirety of trial; and
(2) trial proceeded through Zoom rather than in-person, thus depriving her of access to
her counsel throughout the proceedings.
1There were two copies of the family plan of service filed: the first on September 19, 2019, which
was unsigned by F.M., and the second on August 25, 2020, which was signed by F.M.
2
A. Standard of Review
“We review questions raising constitutional concerns de novo.” In re Commitment
of C.H., 606 S.W.3d 570, 573 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citing State
v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002)). “When the trial court may grant or deny
relief based on its factual determinations, we apply an abuse of discretion standard of
review.” Id. (citing In re Doe, 19 S.W.3d 249, 253 (Tex. 2000)). “In this connection, we
typically apply an abuse of discretion standard of review to procedural rulings or ‘other
trial management determinations.’” Id. (quoting In re Doe, 19 S.W.3d at 253).
When the State seeks to terminate the parent-child relationship, “it must provide
the parents with fundamentally fair procedures.” In re J.F.C., 96 S.W.3d 256, 273 (Tex.
2002) (quoting Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)). “In the termination
context, due process turns on a balancing of three distinct factors.” Id. (quoting Santosky,
455 U.S. at 754) (cleaned up). 2 “Those factors are: ‘the private interests affected by the
proceeding; the risk of error created by the State’s chosen procedure; and the
countervailing governmental interest supporting use of the challenged procedure.’” Id.(quoting Santosky, 455 U.S. at 754). “While parental rights are of constitutional
magnitude, they are not absolute.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). “Just as it is
imperative for courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child not be
sacrificed merely to preserve that right.” Id.
2 We note that the three-factor balancing test employed in In re J.F.C. is the same balancing test
employed in Mathews v. Eldridge. Compare In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (quoting Santosky
v. Kramer, 455 U.S. 745, 753–54 (1982)); with Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Accordingly,
I agree with the majority’s use of this test, but disagree with the outcome of its application.
3
B. Applicable Law
F.M. asserts that the trial court’s failure to appoint her an interpreter violates her
rights under the Fifth, Sixth, and Fourteenth Amendment to the U.S. Constitution and
Article I, Section 10 of the Texas Constitution. See U.S. CONST. amends. V, VI, XIV; TEX.
CONST. art. I, § 10. However, “[t]he protections provided by the Sixth Amendment are
explicitly confined to ‘criminal prosecutions.’” Austin v. U.S., 509 U.S. 602, 608 (1993).
Similarly, Article I, Section 10 of the Texas Constitution only applies to criminal
prosecutions. In re S.A.G., 403 S.W.3d 907, 912 (Tex. App.—Texarkana 2013, pet.
denied). F.M. primarily relies on criminal law procedure and case law in support of her
assertion that the failure to have an interpreter available throughout the entire proceeding
violated her constitutional due process rights. However, the code of criminal procedure
applies to criminal cases, not civil, cf. TEX. CODE CRIM. PROC. ANN. art. 1.03, and parental
termination proceedings are civil. See In re S.A.G., 403 S.W.3d at 912. Further, F.M.
erroneously relies on criminal case law in support of her assertion that the Confrontation
Clause requires an interpreter for parental termination suits. See In re S.A.G., 403 S.W.3d
at 912 (holding the Sixth Amendment to the U.S. Constitution and Article I, Section 10 of
the Texas Constitution are inapplicable in suits to terminate the parent-child relationship
brought by the State). Accordingly, our review is limited to due process applicable to civil
cases, including parental termination suits.
Whether due process affords a parent the right to be given an interpreter for the
entire trial proceedings in a parental termination case appears to be a matter of first
impression for this Court. F.M. relies on In re L.M.I. for the proposition that the right to an
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interpreter in a parental termination suit is a matter of due process. See In re L.M.I. (L.M.I.
I), 117 S.W.3d 1, 4 (Tex. App.—Houston [14th Dist.] 2001) (concluding “[father’s] right to
have the affidavit [of relinquishment] accurately interpreted in a language he understands
is a matter of due process”), aff’d, 119 S.W.3d 707 (Tex. 2003) (L.M.I. II). However, the
Texas Supreme Court declined to reach the issue after determining that appellant father
failed to preserve the argument. In re L.M.I. II, 119 S.W.3d at 711 (“[A]llowing appellate
review of unpreserved error would undermine the Legislature's intent that cases
terminating parental rights be expeditiously resolved . . . .”). Thus, the Texas Supreme
Court left the termination intact but declined to resolve the question of whether a parent
has the due process right to an interpreter for parental termination proceedings. Id.; but
see M.M.V. v. Tex. Dep’t Fam. & Prot. Servs., 455 S.W.3d 186, 190 (Tex. App.—Houston
[1st Dist.] 2014, no pet.) (concluding that “litigants in civil proceedings to terminate
parental rights are entitled to an interpreter” but appellant failed to preserve complaint
regarding interpreter’s competency).
C. Analysis
1. Interpreter
I agree with the majority that for a parent to have “fundamentally fair procedures”
in a parental termination case, the parent must typically be able to understand the
proceedings. See In re J.F.C., 96 S.W.3d at 273. As such, to protect the parent’s due
process rights, a parent is generally entitled to an interpreter when he or she cannot
understand the proceedings. See id. To determine whether F.M.’s due process rights
were violated by the specific circumstances presented in the case, we must balance “the
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private interests affected by the proceeding; the risk of error created by the State’s chosen
procedure; and the countervailing governmental interest supporting use of the challenged
procedure.” See id. (quoting Santosky, 455 U.S. at 754) (cleaned up).
The private interest at stake is F.M.’s fundamental interest in the care, custody,
and management of her children, “‘an interest far more precious than any property right.’”
In re J.F.C., 96 S.W.3d at 273 (quoting Santosky, 455 U.S. at 758–59). As such, “the
private interest in a parental termination case [is] ‘a commanding one.’” Id. (quoting
Santosky, 455 U.S. at 758–59).
I believe the majority’s opinion does not properly analyze the risk of erroneous
deprivation. See In re J.F.C., 96 S.W.3d at 273. In this case, the risk of error created by
proceeding without an interpreter was significant but not determinative. That risk was
partially mitigated by the presence of F.M.’s counsel, who was able to understand the
proceedings and assist F.M. in responding to the evidence presented by the Department.
The risk was also partially mitigated by the attendance of an interpreter for F.M.’s
testimony as well as a portion of the trial to translate the proceedings to F.M. It is crucial
to note that the nature and content of the Department’s evidence in a termination suit
would not change based on the presence of an interpreter; rather, it changes F.M.’s ability
to respond to it. The Department maintains the burden of proving by clear and convincing
evidence both the predicate grounds for termination and that such termination is in the
child’s best interest in its case in chief. See TEX. FAM. CODE ANN. § 161.001(b); Santosky,
455 U.S. at 768 (requiring a clear and convincing burden of proof before the State may
terminate the parent-child relationship in order to protect the due process rights of the
6
parent). Although the majority emphasizes that “there were ten witnesses called with no
interpreter present[,]” such fact seems irrelevant to its ultimate conclusion: “F.M.’s right to
due process . . . required the presence of an interpreter throughout the proceeding.” The
majority appears to hold for the first time that a parent’s right to an interpreter in a
termination suit is absolute. But see In re C.H., 89 S.W.3d 26 (“While parental rights are
of constitutional magnitude, they are not absolute.”).
Additionally, nothing in the record demonstrates that the Department, the trial
court, or the other parties had reason to believe F.M. would need an interpreter on the
day of trial. Rather, the record reflects that, up until that point, the proceedings and filings
were in English, and F.M. did not require an interpreter to proceed. Although the trial court
did not consider on the record whether an interpreter was actually necessary, nor do I,
such information demonstrates surprise to the parties and trial court.
The Department, parents, and children all have an interest in timely resolution of
parental termination cases. In re J.F.C., 96 S.W.3d at 274. Here, the original dismissal
date was July 27, 2020, extended to August 26, 2020, following the thirty-day extension
by the trial court. See TEX. FAM. CODE ANN. § 263.401(a); Seventeenth Emergency Order
Regarding COVID-19 State of Disaster, 609 S.W.3d 119, 120 (Tex. 2020). F.M. did not
request an interpreter until the day of trial on August 25, 2020, despite being aware of the
trial date for over sixty days. See TEX. GOV’T CODE ANN. § 57.002(a) (mandating the
appointment of an interpreter for a party who files a motion requesting such).
The majority notes that “absent a countervailing state interest of overriding
significance, persons forced to settle their claims of right and duty through the judicial
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process must be given a meaningful opportunity to be heard.” Boddie v. Connecticut, 401
U.S. 371, 377 (1971). Although minimized by the majority, a countervailing state interest
existed here: the Department’s fundamental interest in protecting the children’s health
and safety was of overriding significance. See id.; In re A.B., 437 S.W.3d 498, 505 (Tex.
2014) (“[I]n parental termination cases, the parents’ fundamental interest in maintaining
custody and control of their children is balanced against the State’s fundamental interest
in protecting the welfare of the child.”) (emphasis added); see also TEX. FAM. CODE ANN.
§ 263.401(a), (b) (terminating the trial court’s jurisdiction if trial on the merits has not
commenced by the dismissal date). Further, the Department’s interest was not only
“proceeding to trial in a timely manner” as the majority states but proceeding to trial at all
when faced with jurisdictional deadlines.
If trial had not commenced by August 26, 2020, one day after the actual
commencement date, the trial court would have lost jurisdiction, F.M. would have
automatically retained her parental rights, and the children would need to be returned to
her care and custody. TEX. FAM. CODE ANN. § 263.401(a), (b); cf. In re L.N.C., 573 S.W.3d
309, 323 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (considering that “[t]he case
was not at risk for dismissal” before concluding that “the Department’s interest in resolving
the case in a single day cannot be given more weight than the interests of [the parents]
in a just and accurate result”). Such outcome would completely strip the Department, and
by extension the State, from an opportunity to protect its fundamental interests. See
Boddie, 401 U.S. at 377. The children could potentially be subjected to additional abuse
and neglect on the basis that the trial court could not have an interpreter available upon
8
F.M.’s request at the time trial was set to begin. As such, the Department’s interests in
protecting the health and safety of the children and proceeding to trial outweighed F.M.’s
right to an interpreter for the entire proceeding. In re C.H., 89 S.W.3d at 26 (“[I]t is
. . . essential that emotional and physical interests of the child not be sacrificed merely to
preserve [the parent’s] right” to the parent-child relationship.)
The majority notes that an interpreter was available to the trial court later in the
first day, and thus the trial court could have simply delayed trial until later in the day. Yet,
nothing in the record demonstrates that the trial court was or should have been aware
that such availability would occur. The majority also states that the “interpreter was made
available when the Department wished to call a witness that only spoke Spanish.”
However, nothing in the record indicates that the interpreter was made available. On this
record, it is just as likely that the Department waited until the interpreter was available to
call the witness or that it made arrangements in advance to have the interpreter available
for a witness it knew only spoke Spanish.
F.M. urged the trial court to extend the case for up to 180 days under Texas Family
Code § 263.401(b). See TEX. FAM. CODE ANN. § 263.401(b). However, to extend the
jurisdictional deadline, the trial court must “find[] that extraordinary circumstances
necessitate the child[ren] remaining in the temporary managing conservatorship of the
[D]epartment and that continuing the appointment of the [D]epartment as temporary
managing conservator is in the best interest of the child[ren].” Id. When determining
whether extraordinary circumstances exist, the focus is on the needs of the children. In
re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied). Further,
9
“[a]ctions that are considered to be the parent’s fault will generally not constitute
extraordinary circumstances.” In re J.S.S., 594 S.W.3d 493, 501 (Tex. App.—Waco 2019,
pet. denied) (citing In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana 2013, pet.
denied)). F.M. did not establish that her failure to make a timely request for an interpreter
constitutes an extraordinary circumstance or that remaining in the temporary managing
conservatorship of the Department was in the children’s best interest. See TEX. FAM. CODE
ANN. § 263.401(b); see also id. § 263.307(a) (“[T]he prompt and permanent placement of
the child in a safe environment is presumed to be in the child’s best interest.”). Although
it is not F.M.’s fault that she is not fluent in the English language, she bears responsibility
for failing to timely request an interpreter. See In re J.S.S., 594 S.W.3d at 501.
Because I believe the majority does not give the proper weight to the State’s
fundamental interests and the consequences of the pending jurisdictional deadline, I
would conclude that the trial court did not abuse its discretion or violate F.M.’s due
process rights by denying F.M.’s request for an extension and proceeding to trial without
an interpreter for portions of the trial. 3 See In re Commitment of C.H., 606 S.W.3d at 573
(citing In re Doe, 19 S.W.3d at 253) (applying abuse of discretion standard to factual
3 The majority suggests that once the trial court commenced trial prior to the dismissal date, the
case was not in jeopardy of dismissal under Texas Family Code § 263.401(a). See TEX. FAM. CODE ANN.
§ 263.401(a). However, it also concludes that “[the trial court] was not free to provide an interpreter
sporadically throughout the trial[,]” but instead “required the presence of an interpreter throughout the
proceeding.” These two conclusions appear to be in conflict: the trial court cannot simultaneously
commence trial without an interpreter to stop the jurisdictional deadline and provide an interpreter for the
entire proceeding. The majority correctly identifies that the trial court controlled its own scheduling but
concludes that the trial court could have delayed the trial to some unknown day and time without the benefit
of knowing the availability of the trial court, witnesses, and parties. Further, I would caution against the
encouragement of commencing trial for the sole purpose of skirting jurisdictional deadlines. See TEX. FAM.
CODE ANN. § 263.402 (“The parties to a suit under [Chapter 263] may not extend the deadlines set by the
court under this subchapter by agreement or otherwise.”) (emphasis added).
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determinations, procedural rulings, and other trial management decisions); In re J.F.C.,
96 S.W.3d at 273. I would conclude that requiring a parent to make a timely request for
an interpreter provides “fundamentally fair procedures” to the parent, the State, and the
children. See In re J.F.C., 96 S.W.3d at 273. For the foregoing reasons, F.M.’s first issue
should be overruled. I proceed to consider the merits of F.M.’s other issues. I proceed to
consider the merits of F.M.’s other issues.
2. Access to Counsel
By her second issue, F.M. argues her due process rights were violated by the
“failure to provide access and effective communication between trial counsel and [F.M.]
during the trial.” 4 Beyond this assertion, F.M. provides no reference to a statute, rule, or
case law supporting her position. A “brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record.” TEX. R.
APP. P. 38.1(i). Failure to do so may result in waiver of the argument. See RSL Funding,
LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018); see also H&H Sand & Gravel, Inc.
v. Suntide Sandpit, Inc., No. 13-17-00510-CV, 2019 WL 2293585, *7 (Tex. App.—Corpus
Christi–Edinburg, May 30, 2019, pet. denied) (mem. op.). We may, however, address
F.M.’s point in the interest of justice. In re O.R.F., 417 S.W.3d at 42. I do so here.
A review of the record reveals no action by the trial court or circumstance of trial
that prohibited F.M. from having access to her attorney during trial. At trial, F.M.’s counsel
asserted that conducting the trial via Zoom prohibited F.M. from being “side by side” with
4 F.M. does not argue that she received ineffective assistance of counsel. See In re M.S., 115
S.W.3d 534, 544 (Tex. 2003) (“[T]he statutory right to counsel in parental-rights termination cases embodies
the right to effective counsel.”).
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her. However, during F.M.’s de novo hearing, the trial court asked F.M.’s counsel, “[L]et’s
assume that I do grant a new hearing. Are you able to have [F.M.] side by side with you,
even though she has masks, in the next hearing?” F.M.’s counsel responded, “We would
have to do that. Yes, Your Honor. I would have to go ahead and do it in my office
somehow, Your Honor.” F.M. does not argue that such a situation was not possible for
the original trial, nor does the record demonstrate any evidence in support of such. I would
conclude that F.M.’s due process rights were not violated due to lack of access to and
effective communication between F.M. and her trial counsel. See In re A.T.M., No. 13-21-
00008-CV, 2021 WL 2584402, at *8 (Tex. App.—Corpus Christi–Edinburg June 24, 2021,
no pet.) (mem. op.) (concluding father’s telephonic appearance, rather than personal
appearance, did not “meaningfully deprive[] him of any constitutional right.”). F.M.’s
second issue should be overruled.
III. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
By her third, fourth, fifth, and seventh issues, F.M. argues the evidence was legally
and factually insufficient to support termination. By her sixth issue, F.M. argues
termination was improperly based on evidence that she was economically disadvantaged.
See TEX. FAM. CODE ANN. § 161.001(c)(2) (prohibiting termination based on evidence that
a parent is economically disadvantaged).
“[I]nvoluntary termination of parental rights involves fundamental constitutional
rights” and divests the parent and children of all legal rights, privileges, duties and powers
normally existing between them, except for the children’s right to inherit from the parent.
12
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex.
App.—Corpus Christi—Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121
(Tex. 2014) (Lehrmann, J., concurring) (“Termination of parental rights, the total and
irrevocable dissolution of the parent-child relationship, constitutes the ‘death penalty’ of
civil cases.”). Accordingly, “termination proceedings must be strictly scrutinized.” In re
K.M.L., 443 S.W.3d at 112. In such cases, due process requires application of the “clear
and convincing” standard of proof. Id. (citing Santosky, 455 U.S. at 769; In re J.F.C., 96
S.W.3d at 263). This intermediate standard falls between the preponderance of the
evidence standard of ordinary civil proceedings and the reasonable doubt standard of
criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329
S.W.3d at 671. It 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.” TEX. FAM. CODE ANN. § 101.007. A parent’s rights to their children may
be terminated upon a showing by clear and convincing evidence that (1) he or she
engaged in certain acts or omissions prescribed by statute and (2) termination is in the
children’s best interest. TEX. FAM. CODE ANN. § 161.001(b).
When reviewing the factual sufficiency of the evidence supporting termination, we
ask “whether the evidence is such that a factfinder could reasonably form a firm belief or
conviction about the truth of the [Department]’s allegations.” In re C.H., 89 S.W.3d at 25.
In conducting this review, we consider whether the disputed evidence is such that a
reasonable finder of fact could not have resolved the disputed evidence in favor of its
finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire record, the disputed
13
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.” Id.
Under the factual sufficiency standard, we defer to the trier of fact’s determinations
on the credibility of the witnesses “so long as those determinations are not themselves
unreasonable.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); see In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); see also In re C.H., 89 S.W.3d at
26 (“A standard that focuses on whether a reasonable jury could form a firm conviction or
belief retains the deference an appellate court must have for the factfinder’s role.”).
When reviewing the legal sufficiency of the evidence, we “should look at 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 at 266. We must assume “the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so.” Id. Finally, we “should disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible” while considering “undisputed facts that do not support the finding.” Id. If we
“determine[] that no reasonable factfinder could form a firm belief or conviction that the
matter that must be proven is true, then [we] must conclude that the evidence is legally
insufficient.” Id.
B. Applicable Law
1. § 161.001(b)(1)(D) and (E)
Among the prescribed grounds for termination is that the parent “knowingly placed
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or knowingly allowed the child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child” or “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.” Id. § 161.001(b)(1)(D), (E). The primary difference
between Subsection (D) and Subsection (E) is that Subsection (D) focuses on the child’s
conditions or surroundings while Subsection (E) focuses on the parent’s or another’s
conduct, whether by overt act or omission. In re A.L.H., 624 S.W.3d 47, 55–56 (Tex.
App.—El Paso 2021, no pet.). However, the same evidence may support a finding under
either subsection, depending on the circumstances. Id. (providing the example of
continued domestic violence in the home with the children as grounds under both
Subsection (D) and (E)). “[E]ndangerment encompasses ‘more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family environment.’” In
re D.L.W.W., 617 S.W.3d 64, 78 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting
Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). “‘[E]ndanger’
means to expose to loss or injury; to jeopardize.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex.
2021) (quoting Boyd, 727 S.W.2d at 533).
Under Subsection (D), “we must examine the time before the children’s removal to
determine whether the environment itself posed a danger to the [children’s] physical or
emotion well-being.” In re L.W., 609 S.W.3d 189, 199–200 (Tex. App.—Texarkana 2020,
no pet.) (quoting In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no pet.)).
The children’s physical or emotional well-being is endangered when the parent fails to
remove them from a home in which abusive or violent conduct is occurring. Id. Unsanitary
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living conditions may also endanger the children’s physical or emotion well-being by
posing a health risk to the children. In re S.B., 597 S.W.3d 571, 584 (Tex. App.—Amarillo
2020, pet. denied).
Subsection (E) focuses on the parent’s conduct rather than the child’s conditions;
it requires more than a single act or omission, but rather a “voluntary, deliberate, and
conscious course of conduct by the parent.” In re A.L.H., 624 S.W.3d at 56 (citing In re
K.A.C., 594 S.W.3d 364, 372 (Tex. App.—El Paso 2019, no pet.)). “Sexual abuse is
conduct that endangers a child’s physical or emotional well-being.” In re E.A.G., 373
S.W.3d 129, 143 (Tex. App.—San Antonio 2012, pet. denied). “Sexual assault of a child
in the home is conduct we may infer will endanger the physical and emotional well-being
of other children in the home who may either discover the abuse or be abused
themselves.” Id. “[N]eglect can be just as dangerous to the well-being of a child as direct
physical abuse.” In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (per curiam). “The failure
to provide appropriate medical care for a child may constitute endangering conduct under
Subsection (E).” In re J.D.G., 570 S.W.3d 839, 852 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied). Incarceration alone is not sufficient to support termination under Subsection
(E), but “evidence of criminal conduct, convictions, and imprisonment may support a
finding of endangerment.” In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—Houston [14th
Dist.] 2017, no pet.).
2. Best Interest
In addition to proving the requisite grounds for termination, the Department must
prove by clear and convincing evidence that such termination is in the best interest of the
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child. TEX. FAM. CODE ANN. § 161.001(b)(2). When determining whether a child’s best
interest is served by termination, we may consider the Holley factors:
(1) the child’s emotional and physical needs; (2) the emotional and physical
danger to the child now and in the future; (3) the parental abilities of the
individuals seeking custody; (4) the plans for the child by those individuals
and the stability of the home; (5) the plans for the child by the agency
seeking custody and the stability of the proposed placement; (6) the
parent’s acts or omissions that may indicate the existing parent–child
relationship is improper; and (7) any excuse for the parent’s acts or
omissions.
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (citing Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976)). Not all the prescribed factors must weigh in favor of termination and
undisputed evidence of just one factor may be sufficient to support a finding regarding
best interest. In re C.H., 89 S.W.3d at 27. Evidence supporting a predicate ground may
also support a finding that termination is in the best interest of the child. Id.
C. Analysis
1. § 161.001(b)(1)(D) and (E)
By her third and fourth issues, F.M. argues that the Department presented “no
evidence to support a finding” under Subsections (D) and (E), respectively. I disagree. At
the time of the removal, F.M. was incarcerated for alleged burglary of a building,
subsequently pleading guilty to misdemeanor theft. A.M.M. outcried to her mother that
Meche, whom F.M. left the children with, had touched her breasts, butt, and vaginal area.
The children, except for J.I.M.P., were living with the Girons when A.M.M. was abused.
K.A.M. went to stay with a family friend for fear of also being assaulted by Meche. F.M.
did not contest that A.M.M. made the outcry to her; rather, she downplayed it by saying
Meche merely “disrespected her.” Rangel testified that F.M. explained she intentionally
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withheld the information from the Department to prevent the children being removed.
There can be no doubt that a child who is experiencing sexual assault is
endangered, both physically and emotionally. See In re E.A.G., 373 S.W.3d at 143.
Further, such conduct endangers the other children in the home. See id. The evidence
shows F.M. was aware of the outcry and intentionally withheld the information to allow
the children to remain with the abuser. See In re L.W., 609 S.W.3d at 200. Such evidence
is legally and factually sufficient to support a finding that F.M. “knowingly allowed the
child[ren] to remain in conditions or surroundings which endanger [their] physical or
emotional well-being[,]” see TEX. FAM. CODE ANN. § 161.001(b)(1)(D), and “knowingly
placed the child[ren] with persons who engaged in conduct which endangers [their]
physical or emotional well-being.” See id. § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at
266.
The undisputed evidence also showed F.M. failed to secure proper treatment for
A.M.M.’s prediabetes or A.M.M.’s and M.A.M.’s psychiatric needs. See In re M.C., 917
S.W.2d at 270; In re J.D.G., 570 S.W.3d at 852. A.M.M.’s untreated psychiatric needs led
to her stabbing M.A.M. in the face and back with a pencil, undoubtedly endangering his
physical well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D). A.M.M.’s physical well-
being was further endangered by her untreated prediabetes. See In re J.D.G., 570 S.W.3d
at 852. The evidence also showed that F.M. routinely failed to ensure the children
attended school regularly, causing some of them to be held back twice, which endangers
their emotional well-being. See In re M.C., 917 S.W.2d at 270. F.M. further endangered
J.I.M.P. by leaving him under the care of M.A.M. while he was suffering from untreated
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psychiatric conditions. Finally, the initial investigation by the Department revealed that the
children were living in unacceptable conditions, including a dirty home with holes in the
walls and ceilings and without electricity, except that which they got from their neighbor.
See In re S.B., 597 S.W.3d at 584. In addition, F.M. failed to obtain and maintain
psychiatric treatment for herself. See Jordan v. Dossey, 325 S.W.3d 700, 723–24 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied) (“A parent’s mental instability . . . may
contribute to a finding that the parent engaged in a course of conduct that endangered a
child’s physical or emotional well-being.”). Although each act alone may not necessarily
be sufficient to support a finding that F.M. “engaged in conduct . . . which endanger[ed]
the [children’s] physical or emotional well-being[,]” together they show a “voluntary,
deliberate, and conscious course of conduct by the parent” that constitutes neglect. See
TEX. FAM. CODE. ANN. § 161.001(b)(1)(E); In re A.L.H., 624 S.W.3d at 56. I would conclude
that a reasonable factfinder could have formed a firm belief or conviction that F.M.
engaged in the conduct described in Subsections (D) and (E). See In re J.F.C., 96 S.W.3d
at 266–67. F.M.’s third and fourth issues should be overruled.
“To affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—even if
the trial court based the termination on more than one ground.” In re N.G., 577 S.W.3d
230, 232 (Tex. 2019) (per curiam). The Texas Supreme Court has held that sufficiency of
the evidence supporting endangerment under Subsections (D) or (E) must always be
reviewed when challenged on appeal, regardless of whether the evidence supporting
termination under another statutory ground is sufficient. Id. at 237. Having done so, I need
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not address F.M.’s fifth issue, which challenges the trial court’s finding under Subsection
(O). See TEX. R. APP. P. 47.1; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (providing
predicate grounds for termination for a parent who fails to complete the court-ordered
service plan when the children have been in the temporary or permanent conservatorship
of the Department for at least nine months).
By her sixth issue, F.M. argues that termination was improperly based on evidence
that she was economically disadvantaged. See TEX. FAM. CODE ANN. § 161.001(c)(2).
While it is true that evidence was presented regarding F.M.’s economic status, such as
F.M.’s difficulty obtaining and maintaining housing and employment and F.M.’s struggle
to provide clean clothing so that the children could attend school, I would conclude that
the termination was not based solely on such evidence. Rather, as detailed, F.M. routinely
engaged in behavior, either overtly or by omission, which endangered the children’s
physical health or emotional well-being. Because there was ample evidence that a
reasonable factfinder could have found clear and convincing to establish that F.M.
endangered the children’s physical and emotion well-being under Subsections (D) and
(E), F.M.’s argument fails. See In re J.T.G., 121 S.W.3d 117, 127 (Tex. App.—Fort Worth
2003, no pet.) (upholding termination where evidence supported jury’s finding of
endangerment, despite appellant’s assertion that it was based on economic
disadvantage). F.M.’s sixth issue should be overruled.
2. Best Interest
By her seventh issue, F.M. contends the evidence was legally and factually
insufficient to support a finding that termination was in the children’s best interest. In
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support of her argument, F.M. contends there was limited or no evidence as to (1) the
emotional or physical needs of the children, now and in the future; (2) the emotional and
physical danger to the children, now and in the future; or (3) programs available to assist
the individuals in promoting the children’s best interest. Regarding the children’s wishes,
F.M. notes that the testimony reflected “the children missed their mother and looked
forward to returning to her.” Regarding the parental abilities of F.M., F.M. merely states
that the evidence shows she wished to retain her parental rights and “did not have
transportation because she lacked the financial resources.” Regarding the stability of the
proposed home, F.M. notes that the evidence “showed she was working as a provider,
had a place to reside and was working with Tropical Texas to get a home through [the]
PATH program.” Regarding the acts or omissions by a parent that indicate the existing
parent-child relationship is an improper one, F.M. summarizes the evidence, stating it
showed she completed all her services and never tested positive for drugs and was never
convicted of trespass or burglary to a building. Finally, regarding any acts or omissions
committed by the parent, F.M. simply argues that she was economically disadvantaged
and lacked support.
The evidence regarding the physical and emotional needs of the children, now and
in the future, include A.M.M.’s continued need for treatment for prediabetes as well as
M.A.M.’s need for psychiatric treatment. This is also true for their educational delays
brought on by excessive absences from school. F.M.’s minimization of these needs and
history of failing to address them demonstrate that she is either incapable or unwilling to
meet the children’s needs. This factor weighs in favor of termination.
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I disagree there was no evidence of any emotional or physical danger to the
children now or in the future. Evidence of F.M.’s history of endangering the children’s
physical or emotional well-being permits an inference that she may endanger the children
in the future if returned to her care. See In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.—
Houston [1st Dist.] 2019, no pet.). This factor weighs in favor of termination.
I also disagree that there was no evidence of programs available to assist F.M. in
providing care for the children. The record reveals that F.M. was able to receive services
that included mental health treatment, housing, and food assistance. However, F.M. failed
to fully avail herself of the available assistance. Although F.M. contends she was seeking
housing through the PATH program provided by Tropical Texas, Granado testified that
F.M. had not sought the service. Granado further testified that although F.M. completed
a psychological exam, the provider recommended psychiatric treatment for F.M., which
she never received. However, the record clearly establishes that F.M. took advantage of
the food assistance programs. Accordingly, this factor weighs only slightly in favor of
termination.
Although the evidence does reveal the children missed F.M., it is not so clear that
they “looked forward to returning to her.” J.I.M.P.’s therapist testified that he expressed
the desire to return to F.M. but was concerned about that desire because J.I.M.P. did not
seem to understand who F.M. was to him. Further, the evidence showed that he typically
reacted more favorably to his stepmother than F.M. and referred to F.M. as “[A.M.M.]’s
mom” and his stepmother as “mom.” A.M.M. did express her desire to return to her
mother, but in the end, the other children were “okay” with F.M.’s rights being terminated.
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A reasonable factfinder could have formed a firm belief or conviction that this factor
weighed in favor of termination for M.A.M., K.A.M., J.G.M., J.E.M., and J.I.M.P. while
weighing against termination in favor of A.M.M. See In re J.F.C., 96 S.W.3d at 263, 266.
The evidence, as previously detailed, supports a finding that F.M.’s parenting
abilities were lacking. Specifically, her home was routinely unsanitary, she failed to
provide appropriate medical care for the children, neglected the children’s educational
needs, and did not take steps to protect her children after A.M.M. made an outcry of
sexual abuse. This evidence also goes to the factor considering the parent’s acts or
omissions that indicate the existing parent-child relationship is improper. Although F.M.
was not convicted of criminal trespass or burglary of a building, she pleaded guilty to theft
charges stemming from the incident. Additionally, F.M. brought A.M.M. to commit the
crime, causing A.M.M. to receive juvenile charges as well. F.M. asserts that Granado
testified that she completed all her services, but a review of Granado’s testimony reveals
that F.M. failed to obtain psychiatric services as recommended, failed to pay child support,
failed to attend all her visits with the children, and failed to complete family therapy. These
factors weigh in favor of termination.
Although at trial F.M. testified that she was working as a provider, she estimated
she had been working there for approximately four to six weeks. She further testified that
she had at least four other jobs during the pendency of the case, each lasting about two
weeks. Additionally, the evidence shows that prior to removal, F.M. lived in three separate
homes with her children and another without them. Although F.M. “had a place to reside[,]”
she did not have stable housing, as demonstrated by the need for housing assistance
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through PATH. F.M. claims that Castillo testified that if F.M. had stable housing and
employment his opinion “would change on whether the children should be returned to
their mother[,]” but such a change has not occurred, and as such, he expressed concern
about the prospect of the children returning. F.M.’s instability weighs in favor of
termination.
Finally, F.M.’s sole excuse for any acts or omissions is that she is economically
disadvantaged. As discussed supra, F.M.’s economic status does not excuse leaving the
children in the home with somebody who sexually abused one of the children, failing to
obtain proper medical care for the children, having an unsanitary home environment, or
neglecting the children’s educational needs to the significant detriment of the children. As
such, this factor weighs in favor of termination.
Having reviewed the record, I would conclude that a reasonable factfinder could
have formed a firm belief or conviction that termination of F.M.’s parental rights was in the
children’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re A.C., 560 S.W.3d
at 631; In re J.F.C., 96 S.W.3d at 266. F.M.’s seventh issue should be overruled.
IV. CONCLUSION
Accordingly, I would affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Delivered and filed on the
15th day of October, 2021.
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