in the Interest of F.G.M., a Child ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00066-CV
IN THE INTEREST OF F.G.M., A CHILD
From the 378th District Court
Ellis County, Texas
Trial Court No. 81074D
MEMORANDUM OPINION
Appellee S.M., (whom we will refer to with the alias Sally), 1 the mother of
F.G.M., filed a petition to terminate the parental rights of F.G.M.’s father, Appellant
L.M. (whom we will refer to with the alias Lanny), asserting at trial the statutory
ground in subsection 161.001(1)(L)(iv). After a bench trial, the trial court terminated
Lanny’s parental rights on that ground. Lanny, appearing pro se, appeals the trial
court’s order. We will affirm.
In a proceeding to terminate the parent-child relationship brought under section
161.001, the petitioner must establish by clear and convincing evidence two elements:
(1) one or more acts or omissions enumerated under subsection (1) of section 161.001,
1
See TEX. R. APP. P. 9.8.
termed a predicate violation; and (2) that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014); Swate v. Swate, 72 S.W.3d 763, 766
(Tex. App.—Waco 2002, pet. denied). Family Code subsection 161.001(1)(L)(iv)
provides for termination if the parent has “been convicted … for being criminally
responsible for the death or serious injury of a child under the following sections of the
Penal Code … (iv) Section 21.11 (indecency with a child) … .” TEX. FAM. CODE ANN. §
161.001(1)(L)(iv) (West 2014).
Lanny’s pro se brief is deficient in that it fails to state the issues or points
presented for review. See TEX. R. APP. P. 38.1(f). His overall argument in his brief is that
there is no evidence of serious injury of a child to satisfy termination under subsection
161.001(1)(L)(iv) and that serious injury to a child cannot be inferred from his
commission of the offense of indecency with a child. We invoke Rule 2 and will
suspend Rule 38.1(f)’s requirements and address Lanny’s legal sufficiency complaint.
See TEX. R. APP. P. 2; see also In re Jordan, 264 S.W.3d 850, 852 n.1 (Tex. App.—Waco 2008,
no pet.) (stating that we review and evaluate pro se briefs with patience and liberality).
The standard of review for legal sufficiency in termination cases is well
established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002). In reviewing the legal
sufficiency, we view all the evidence in the light most favorable to the finding to
determine whether a trier of fact could reasonably have formed a firm belief or
conviction about the truth of the allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005);
J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that
does not support the finding. J.F.C., 96 S.W.3d at 266.
In the Interest of F.G.M. Page 2
Sally and Lanny divorced in March 2011. Sally testified that in April 2010, Lanny
had confessed to her that he had been “molesting our child over a period of years.”
That child, L., is F.G.M.’s older sister and was age 27 at the time of trial. In January
2012, Lanny pleaded guilty to the offense of indecency with a child (occurring in 1998)
and received a three-year sentence as part of a plea bargain. In August 2012, Sally filed
her petition to terminate Lanny’s parental rights to F.G.M.
Lanny argues that, based on Vidaurri v. Ensey, 58 S.W.3d 142 (Tex. App.—
Amarillo 2001, no pet.), serious injury to a child is not implicit in the offense of
indecency with a child. See id. at 145-48. In another case under subsection
161.001(1)(L)(iv), the court stated: “While the conviction might be sufficient evidence of
death or injury in those cases where death or serious injury to the child is an element of
the offense, we hold that where death or serious injury is not an element of the offense,
the conviction or deferred adjudication is not by itself sufficient evidence to support
termination under section 161.001(1)(L)(iv).” In re L.S.R., 60 S.W.3d 376, 379 (Tex.
App.—Fort Worth 2001), pet. denied per curiam, 92 S.W.3d 529 (Tex. 2002). But in
denying the petition for review in L.S.R., the supreme court stated: “We deny the
petitions for review, but disavow any suggestion that molestation of a four-year-old, or
indecency with a child, generally, does not cause serious injury.” 92 S.W.3d at 530; see
also In re A.R.R., 61 S.W.3d 691, 700 (Tex. App.—Fort Worth 2001, pet. denied)
(“Charlotte Guest, a CPS caseworker with a master’s degree in family counseling,
testified that she had worked solely with abused and neglected children, including
children who were sexually abused, in her nine years with CPS. She testified that the
In the Interest of F.G.M. Page 3
type of sexual abuse that Appellant committed against his daughter [sexual
assault/“inappropriately touch[ing] [his] daughter”] causes a child to sustain serious
injury to her emotional well-being, and that such an injury could present a ‘lifelong
problem.’”), disapproved on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2002) and In re
A.V., 113 S.W.3d 355 (Tex. 2003).
Regardless of Vidaurri, Sally testified that her daughter L. suffered “physical
trauma” and “emotional and psychological harm” from the indecency. Specifically,
Sally said that L. is “emotionally unstable. She has had - - it’s been a lifelong inability to
form relationships. She’s undergoing counseling, and she has been at times suicidal.”
Viewing all the evidence in the light most favorable to the trial court’s finding,
we hold that a reasonable factfinder could have formed a firm belief or conviction that
L. suffered serious injury as a result of Lanny’s indecency conduct. See R.F. v. Tex. Dep’t
of Fam. & Prot. Servs., 390 S.W.3d 63, 75 (Tex. App.—El Paso 2012, no pet.); A.R.R., 61
S.W.3d at 700. Having found that the evidence of serious injury is legally sufficient, we
affirm the trial court’s termination order.
REX D. DAVIS
Justice
In the Interest of F.G.M. Page 4
Before Chief Justice Gray,
Justice Davis, and
Judge Coley2
Affirmed
Opinion delivered and filed November 26, 2014
[CV06]
2The Honorable Gary Coley, Judge of the 74th District Court, sitting by assignment of the Chief Justice of
the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(a) (West 2005).
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