M.A.R. v. Department of Family and Protective Services ( 2023 )

Reversed and Rendered in Part, Affirmed in Part, and Majority and
Dissenting Memorandum Opinions filed August 8, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00094-CV
M.A.R., Appellant
V.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2021-01122J
DISSENTING MEMORANDUM OPINION
I agree with the majority’s affirmance of the trial court’s judgment
terminating Father’s parental rights to the child, Bea. I disagree with the
majority’s conclusion that there is legally insufficient evidence to support the trial
court’s finding under Section 161.001(b)(1)(E) of the Family Code because Father
engaged in conduct that endangers the physical or emotional well-being of the
child.
There is evidence of the following:
• Drug Use. Father tested positive for marijuana no less than
five times over the course of nine months after the children
were removed. He refused several drug tests and was a no-
show for at least another five tests.
• Criminal History. Father had a long criminal history with
nearly a dozen convictions for drug offenses and other crimes
such as burglary, theft of a firearm, and assault causing bodily
injury. Father was arrested for assaulting Mother, but the
charges were dismissed when she recanted.
• Return to Mother. After Mother was found unconscious due
to intoxication while in her car with the child, Father returned
the child to Mother’s care one day after taking the child despite
being aware of Mother’s intoxication. Father was unwilling to
serve as a long-term caregiver and had no place for the child to
live.
• Service Plan and Instability. Father failed to comply with
multiple provisions of his service plan, including but not
limited to: attending counseling, providing evidence of stable
housing and employment, completing parenting classes, and
following recommendations for substance abuse treatment.
• Missed Visits. Father failed to attend a significant number of
visits with the child. After the court changed visits from in-
person to videoconference, Father also missed three of those
visits.
• Absence from Trial. Father failed to attend trial and provided
no excuse for his absence.
As the majority acknowledges: endangerment under subsection (E) is
shown by jeopardizing the child’s emotional health; endangerment does not
require that Father’s conduct be directed at the child or that the child actually
suffer injury; and endangerment to the child’s physical or emotional well-being
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may be inferred from Father’s misconduct alone. See In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
I would conclude that the evidence highlighted above is sufficient to
support the trial court’s firm belief or conviction that Father engaged in conduct
that endangered the physical or emotional well-being of the child. See, e.g., In re
J.O.A., 283 S.W.3d 336, 345 & n.4 (Tex. 2009) (drug use); In re Z.K.S., No. 14-
22-00258-CV, 2022 WL 4243793, at *4–5 (Tex. App.—Houston [14th Dist.]
Sept. 15, 2022, no pet.) (mem. op.) (collecting cases regarding voluntary absence
from the case, failing to attempt services, and failing to maintain contact with
child); In re C.A.B., 289 S.W.3d 874, 886–87 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (abuse toward family member; criminal activities and
imprisonment; conduct that subjects a child to a life of uncertainty and instability);
cf. In re A.J.D.-J., 667 S.W.3d 813, 826 (Tex. App.—Houston [1st Dist.] 2023, no
pet.) (regarding best interest of the child, failure to attend trial without excuse).
I would affirm the trial court’s judgment in its entirety rather than strike the
endangerment findings. Because the majority does not, I respectfully dissent.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Bourliot, and Spain. (Spain, J., majority).
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