J. M. III and T. R. v. Texas Department of Family and Protective Services ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00336-CV
J. M. III and T. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 23DFAM337463, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING
MEMORANDUM OPINION
J.M. III (Father) and T.R. (Mother) appeal the trial court’s Decree of Termination,
which terminates their parental rights to their four children—an oldest daughter, two younger
sons, and an infant son. Father challenges only the finding made against him under the statutory
best-interest requirement, arguing that the evidence was legally and factually insufficient to
support it.1 See Tex. Fam. Code § 161.001(b)(2). In contrast, Mother’s attorney on appeal has
filed an Anders brief, concluding that Mother’s appeal is frivolous and without merit. See Anders
v. California, 386 U.S. 738, 744 (1967); In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam)
(approving use of Anders procedure in appeal from judgment terminating parental rights).
1
He does not challenge the findings made against him under the four statutory predicate
grounds Paragraphs (D), (E), (N), and (O). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O).
Those findings are thus binding in this appeal and can support the challenged best-interest finding.
See A.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-23-00054-CV, 2023 WL 4424848, at
*3 (Tex. App.—Austin July 11, 2023, no pet.) (mem. op.).
Because the evidence was legally and factually sufficient to support the
best-interest finding made against Father, we overrule his sole issue. As for Mother, her Anders
brief meets the necessary requirements by presenting a professional evaluation of the record and
demonstrating why there are no arguable grounds to be advanced on appeal. See 386 U.S. at 744;
Taylor v. Texas Dep’t of Protective & Regul. Servs., 160 S.W.3d 641, 646–47 (Tex. App.—Austin
2005, pet. denied). We thus affirm the trial court’s Decree.
BACKGROUND
The children were removed for their protection in an emergency from Father and
Mother’s home in early 2023 due to the condition of the home, the older children testing positive
for methamphetamine, and the youngest child testing positive for methamphetamine at birth. They
were placed by the Department in separate foster placements—the oldest daughter in one, the two
younger sons together in another, and the infant son in a third because of concerns about the
children’s needs. The Department developed Family Service Plans for each parent setting forth
the Department’s requests for steps to be taken by the parents before the children would be returned
to their care, and the trial court made those Plans orders of the court. Each parent’s Plan, for
example, required regular drug-testing. And the Department required a number of consecutive
negative drug-test results before the Department would let the parents visit the children.
The Department’s claims to terminate the parent’s rights were tried to the bench
beginning in January 2024 and continuing in February and March 2024. By that time, the children
ranged in age from one year to six and a half. The witnesses for the Department included its
caseworker, the daughter’s counselor, and a Department investigator. Father put on a case-in-
chief and testified. After the evidence closed and the trial court heard the guardian ad litem’s
2
recommendation, the court signed its Decree of Termination terminating Father’s and Mother’s
parental rights to the children. Both parents now appeal.
FATHER’S APPEAL
Father’s sole appellate issue is a challenge to the legal and factual sufficiency of
the evidence supporting the best-interest finding made against him. To terminate parental rights,
the Department must prove one of the statutory predicate grounds and that termination is in the
best interest of the child. See Tex. Fam. Code § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355,
362 (Tex. 2003). It must prove both elements by clear and convincing evidence. See Tex. Fam.
Code § 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing
evidence’ means 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 § 101.007; accord In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Legal-sufficiency review of the evidence to support termination requires reviewing
all the evidence in the light most favorable to the finding under attack, and considering undisputed
contrary evidence, to decide whether a reasonable factfinder could have formed a firm belief or
conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).
“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding
against all the evidence favoring the finding.” Id. at 631. “Evidence is factually insufficient if, in
light of the entire record, the disputed evidence a reasonable factfinder could not have credited
in favor of a finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true.” Id. When reviewing the evidence, we must “provide due
deference to the decisions of the factfinder, who, having full opportunity to observe witness
3
testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses.”
In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
When reviewing best-interest findings, courts consider factors like (1) the child’s
wishes, (2) the child’s emotional and physical needs now and in the future, (3) emotional or
physical danger to the child now and in the future, (4) the parenting abilities of the parties seeking
custody, (5) programs available to help those parties, (6) plans for the child by the parties seeking
custody, (7) the stability of the proposed placement, (8) the parent’s conduct that may indicate that
the existing parent–child relationship is improper, and (9) any excuses for the parent’s conduct.
In re J.W., 645 S.W.3d 726, 746 (Tex. 2022) (citing Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976)). This list is not exhaustive, not all factors need be proven to determine best interest,
and proof of only one factor may in a particular factual context support termination. See M.L. v.
Texas Dep’t of Fam. & Protective Servs., No. 03-22-00541-CV, 2023 WL 2025710, at *5 (Tex.
App.—Austin Feb. 16, 2023, no pet.) (mem. op.); S.C. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-20-00039-CV, 2020 WL 3892796, at *16 (Tex. App.—Austin July 10, 2020, no pet.)
(mem. op.). Evidence probative under the statutory predicate grounds may also be probative of
best interest. A.C., 560 S.W.3d at 631–32.
We begin by noting that because Father has not challenged the predicate-ground
findings against him under Paragraphs (D), (E), (N), and (O), those findings are binding in this
appeal and may support the best-interest finding.2 See A.B. v. Texas Dep’t of Fam. & Protective
2
Those Paragraphs provide that parental rights may be terminated if the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;
4
Servs., No. 03-23-00054-CV, 2023 WL 4424848, at *3 (Tex. App.—Austin July 11, 2023, no pet.)
(mem. op.); In re A.K., 487 S.W.3d 679, 688 (Tex. App.—San Antonio 2016, pet. denied).
Especially probative of best interest are the endangerment findings, Paragraphs (D) and (E).3
(E) 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;
....
(N) constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and Protective
Services for not less than six months, and:
(i) the department 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; [or]
(O) failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the child
who has been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the child’s removal from the parent under Chapter 262 for the abuse or
neglect of the child.
Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O).
3
This is why we reject Father’s argument on appeal that “[t]here was no evidence . . . that
showed continuing the parent child relationship . . . presented a danger that would warrant forever
preventing any kind of relationship with them.” We are bound by the unchallenged endangerment
findings, and the factfinder may reasonably infer from past endangering conduct or past inability
to meet a child’s needs that returning the child to such a parent would again entail endangerment
or inability to meet needs. See In re J.I.G., No. 01-18-00023-CV, 2018 WL 3233874, at *10 (Tex.
App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem. op.); In re J.D., 436 S.W.3d 105, 119 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).
5
The evidence showed Father to be unable to provide the children with a stable—or
even a safe—home life. See In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex.
App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.) (evidence of parent’s failure to
provide stability for prolonged period allowed factfinder to infer that same pattern would likely
continue and that permanency could be achieved only through terminating parental rights and
adoption by another). When the Department first removed the children from the parents’ care, the
condition of the home was, according to the Department’s caseworker, “pretty bad” and unlivable
for children. It had holes in the walls; dirty toilet tissue was in the bathtub, preventing its use; duct
tape covered the oven door and several windows; rotten food clogged the sink; there were
noticeable odors of urine and marijuana; and a closet door was tied to its room’s exit door. The
cord tied to the closet door was, according to a Department worker’s affidavit, used to keep the
children “in the room so they couldn’t get out.” The worker also swore that the parents “have
displayed a blatant disregard for their children’s safety by engaging in excessive domestic violence
while the children were present, living in an unsafe home, and fleeing from CPS for 21 days.”
The children often were left home alone. Department personnel when visiting the
home sometimes heard the children “crying inside the front door.” The caseworker said that they
would be “left for days and days alone to the point to where the children had to leave to wander to
get food, and there was no food.” During one such episode, one of the older boys ate dirt.
The parents eventually were evicted from the home and lived in a series of hotel
rooms or out of their car. Through the final trial in the case, Father lacked suitable housing for
four children, continuing to live with Mother in a one-bedroom, one-bathroom hotel room that
lacked items for the children. Father was inconsistently employed throughout the case, causing
Department personnel concern about whether he could support the children financially, and did
6
not have a job when the final trial began.4 Even after he found a job at a convenience store, his
work hours were less than full-time, and a comparison of his income to his expenses cast doubt on
whether he could support the children. The caseworker testified that neither parent has provided
gifts, food, diapers, or clothing for the children in the months leading to the final trial.5 Father
admitted that he cannot provide a home for all the children, and the caseworker agreed that the
hotel room was not enough. Father also admitted that he has no plan for caring for the youngest
two children, the older of whom is nonverbal, has special needs presumed to be related to autism,
and has suffered developmental delays.
As for the oldest daughter, she has made an outcry of sexual abuse committed
against her by Mother, yet Father has continued to live with Mother. In February 2024, after a
phone call with the parents, the oldest daughter reported that Mother had touched her private
parts and chest. The child made the same report during a later forensic interview at a children’s
advocacy center, and Department personnel have concluded that there is reason to believe the
allegations. Also during the forensic interview, the child said that Father had seen some of the
sexual abuse occurring and even though he told Mother to stop, he just walked out of the room.
4
Family Code section 161.001(c)(2) does not prohibit the Department from offering
evidence of financial inability to care for multiple children, and a best-interest finding against a
parent is supportable even when the evidence shows that the parent is economically disadvantaged
when the evidence also shows other reasons supporting the best-interest finding, such as
illegal-drug use and domestic violence. See In re A.F., No. 10-19-00335-CV, 2020 WL 1313450,
at *19 (Tex. App.—Waco Mar. 19, 2020, no pet.) (mem. op.); In re J.D.-V., No. 04-18-00743-CV,
2019 WL 938290, at *3 (Tex. App.—San Antonio Feb. 27, 2019, pet. denied) (mem. op.).
5
Father gave competing testimony, saying that he had provided gifts and diapers. Yet the
trial court, as factfinder, could resolve this evidentiary conflict against Father’s position. See In re
A.B., 437 S.W.3d 498, 503 (Tex. 2014); see also Smith v. McLin, 632 S.W.2d 390, 392 (Tex.
App.—Austin 1982, writ ref’d n.r.e.) (factfinder need not accept truth or accuracy of testimony by
parent who is subject of parental-rights-termination suit about parent’s actions or intentions).
7
Partly because of the sexual-abuse allegations and the resulting pending case against Mother, the
caseworker recommended not returning any of the children to Mother’s care.6 Father’s testimony
buttressed this concern—he testified that he would be willing to limit any access to the children
by Mother if the court required it and that he would be willing to separate from Mother. And yet,
Father was still living with Mother and planning to continue to live with Mother during and after
the final trial in the case. The caseworker said that the children still have a lot of trauma “when it
comes to their parents.”
The oldest daughter in particular was put under significant strain by the parents.
Her counselor testified that when first coming into his care, the daughter was “severely damaged”
with “severe mother issues” and “serious problems,” including difficulty making substantive
human attachments. She presented as a “parentified child,” expressing fear over being responsible
for taking care of and feeding her siblings because she was often left alone with them by the
parents. She has told the counselor that she “used to be 30 and now she’s just 5 or 6,” and the
counselor testified that in their 11 months of therapy together, much of the therapy has focused on
helping her learn to be a child again and to deal with feeling overwhelmed, rejected, or abandoned.
She was not yet seven.
The children’s lives have since markedly improved. In their separate foster
placements, they were growing and thriving.7 About the two older sons, the caseworker testified
that their foster-to-adopt placement was creating a healthy bond with them. The older of the two
6
Similarly, Mother’s therapist recommended not returning the children to Mother because
she continued to use drugs, lived in the hotel room, and needed inpatient drug rehab.
7
They were separated partly because when one or more of them would see one another,
they would urinate on themselves for days afterward and would have trouble sleeping.
8
had been overweight when first coming into Department care, but the foster placement saw to that
need by keeping the child on a special diet. The younger of the two has developmental delays and
is believed to have autism. His placement has given him access to therapy and treatment. The
infant, according to the caseworker, also is in a healthy, foster-to-adopt placement, where the
caregivers have developed a bond with him. The oldest daughter is in her own foster-to-adopt
placement, which has helped her through needing to repeat kindergarten, and has formed a bond
with the foster mother, whom the daughter refers to as “Mom.”
On top of all this evidence, much of the Department’s case against Father also
involved evidence of his continuing drug use, causing Department personnel concern that he would
continue to use drugs even if the children were returned to him. A parent’s abuse of drugs is
relevant under several of the Holley factors, especially when the drug use occurs while the case to
terminate the parent’s rights is pending. See K.H. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-24-00247-CV, 2024 WL 3880031, at *4 (Tex. App.—Austin Aug. 21, 2024, no pet.)
(mem. op.). Evidence of a parent’s “drug use throughout the children’s lives, . . . continued drug
use during the case, and . . . history of instability” supports a best-interest finding against the
parent. See In re A.A., 670 S.W.3d 520, 534 (Tex. 2023).
The evidence here showed that Father tested positive for methamphetamine during
the case, in May 2023, November 2023, and January 2024. See K.H., 2024 WL 3880031, at *4
(methamphetamine use during case supported best-interest finding against parent). It also showed
his testing positive for marijuana during the case, in April 2023, July 2023, September 2023,
November 2023, and January 2024. He was recommended by a substance-abuse-screening service
to attend meetings of a narcotics-abuse counseling group, but the Department was unaware of
whether he ever attended any. On top of positive drug-test results, Father altogether missed several
9
Department-requested drug tests, including after the final trial had begun. It was reasonable for
the trial court to infer that those missed tests would have been positives. See T.D. v. Texas Dep’t
of Fam. & Protective Servs., 683 S.W.3d 901, 914 (Tex. App.—Austin 2024, no pet.).
Father admitted using methamphetamine in May 2023 and October 2023 and
marijuana in February 2024. He also admitted that his drug use over time has led to a diagnosis
of substance-induced psychotic disorder. The disorder has caused him to hear a voice that tells
him to beat people.
His and Mother’s drug use has affected the children.8 It has kept the children apart
from the parents because neither parent could provide the number of consecutive negative drug-test
results requested by the Department and ordered by the trial court, and thus neither had visitations
with the children for months during the case. Even though some of Father’s drug use occurred
while away from the children, he also, by his own admission, had used drugs while the children
were in his care. See A.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-23-00658-CV,
2024 WL 1587046, at *5 (Tex. App.—Austin Apr. 12, 2024, no pet.) (mem. op.) (parent’s use of
illegal drugs can still expose child to jeopardy even if use did not occur when child was around).
The parents’ drug use has even affected the children physically. The older two sons tested positive
for methamphetamine, one of them also tested positive for marijuana, and the infant’s meconium
tested positive for methamphetamine and marijuana at birth. The parents’ response to there being
8
As to Mother’s drug use, the evidence showed, among other things, that she
(a) overdosed on methamphetamine in October 2023, leading to an arrest and a still-pending
state-jail-felony charge for possession of a controlled substance; (b) either missed or tested positive
for the majority of the Department-requested drug tests in the case; (c) tested positive for
methamphetamine and amphetamine in September 2023; and (d) continued testing positive for
marijuana and missing requested drug tests even after completing an outpatient-rehab program.
10
drugs in the home with the children was to say, according to the caseworker, “People make
mistakes.” Father continued to live with Mother through the final trial.
Of course, Father takes a different view of the evidence. He advances five
arguments, but none persuades us that the trial court’s Decree should be reversed.
First, he says that there was no evidence showing the desires-of-the-children Holley
factor. But “[w]hen children are too young to express their desires, the fact finder may consider
that the children have bonded with the foster family, are well-cared for by them, and have spent
minimal time with a parent.” In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]
2014, no pet.). Though the three sons were too young to express their desires, they had bonded
with their foster families, were well cared for by them, and had spent minimal time with Father.
As for the oldest daughter, when her counselor worked with her to depict on a diagram the people
whom she felt closest with, Mother was not in the picture at all, and Father was at the furthest-away
level of attachment. In the same exercise, the daughter put the foster mother at the center of
the child’s attachments. Additionally, the parents’ lack of visitations can be considered under the
desires-of-the-child factor because the resulting bonding with foster parents and simultaneous lack
of bonding with the parent are relevant. See In re M.B., No. 02-15-00128-CV, 2015 WL 4380868,
at *15 (Tex. App.—Fort Worth July 16, 2015, no pet.) (mem. op.).
Second, Father argues that there was no evidence that he could not meet the
children’s needs or that the foster placements were doing anything advanced to meet the children’s
needs. On the contrary, Father admitted to not having a plan to care for the youngest two sons
and did so in the context of questioning about those children’s needs, for example, to be taken to
various appointments and to see certain therapeutic professionals. The trial court reasonably
could have inferred from the evidence that Father’s admission meant an inability to meet the
11
children’s needs. But even without this testimony, and assuming for the moment, but not deciding,
that Father’s argument is correct, the children’s needs are only one of the Holley factors, see
544 S.W.2d at 371–72, and the Department need not prove all factors when seeking to terminate
parental rights, see M.L., 2023 WL 2025710, at *5; S.C., 2020 WL 3892796, at *16.
Third, Father asserts that there is no evidence of the foster placements’ commitment
to keep the children in contact with one another, contrasting with Father’s wish for all the children
to return to his care. But there was testimony allowing the factfinder to decide that frequent contact
among the children would not be in their best interest. The caseworker testified that the children
have needed therapy for issues that arise “whenever they either speak to or—speak to their parents
or visit their sibling.” It was in this context that the caseworker pointed out that when the children
would see one another, they would often for days afterward have trouble with urinating on
themselves or with sleeping.
Fourth, Father asserts that there was no evidence of the foster placements’ plans
for the children. But the children’s placement in foster-to-adopt homes is at least some evidence
that the placements were willing to adopt the children. Plus, this and the other Holley factors focus
on stability and permanence for children and allow for comparisons between the subject parent’s
and Department’s plans. See J.D., 436 S.W.3d at 120 (stating, in analysis under “plans” Holley
factor: “The fact finder may compare the contrasting plans for a child by the parent and the
Department and consider whether the plans and expectations of each party are realistic or weak
and ill-defined. The stability of the proposed home environment is an important consideration in
determining whether termination of parental rights is in the child’s best interest. Stability and
permanence are paramount in the upbringing of children.” (internal citations omitted)). Under
such a comparison here, Father’s plans were at best ill-defined, and they were admittedly
12
nonexistent regarding the youngest two children. By contrast, each child was happy and healthy
in their placement, experiencing positive care and growing bonds with their caregivers.
Fifth, Father points to evidence showing his progress—he has harnessed
community resources to help find employment and housing and has engaged in therapy and
parenting classes. However, we conclude under the applicable legal- and factual-sufficiency
standards that the evidence as a whole allowed the trial court to form a firm belief or conclusion
about the best-interest finding against Father. We thus overrule his sole issue.
MOTHER’S APPEAL—ANDERS BRIEF
In connection with the Anders brief that Mother’s appellate attorney has filed, the
attorney has certified to this Court that he has provided Mother with a copy of the brief. To date,
Mother has not filed a pro se brief. The Department has a filed a response stating that it will not
file a brief regarding Mother’s appeal unless requested by this Court.
Upon receiving an Anders brief, we must conduct a full examination of the record
to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988);
Taylor, 160 S.W.3d at 647. We have conducted an independent review of the entire record,
including the Anders brief submitted on Mother’s behalf, and have found nothing in the record that
might arguably support an appeal. Our review included the trial court’s endangerment findings
against Mother under Paragraphs (D) and (E), and we have found no nonfrivolous issues that could
be raised on appeal with respect to those findings. See In re N.G., 577 S.W.3d 230, 237 (Tex.
2019) (per curiam). We agree that Mother’s appeal is frivolous and without merit.
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CONCLUSION
We affirm the trial court’s Decree of Termination. Mother’s counsel’s motion to
withdraw is denied.9
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Triana and Kelly
Affirmed
Filed: November 15, 2024
9
The Supreme Court of Texas has held that the right to counsel in suits seeking the
termination of parental rights extends to “all proceedings [in that Court], including the filing of a
petition for review.” In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Accordingly,
counsel’s obligation to Mother has not yet been discharged. See id. If after consulting with
counsel, Mother desires to petition for review, her counsel should timely file with the Supreme
Court “a petition for review that satisfies the standards for an Anders brief.” See id. at 27–28.
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