in the Interest of J.G.M., D.M., L.M. & L.M., Children

NO. 12-19-00066-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 307TH
J.G.M., D.M., L.G.M. & L.E.M., § JUDICIAL DISTRICT COURT
CHILDREN § GREGG COUNTY, TEXAS
MEMORANDUM OPINION
L.M. appeals the termination of his parental rights. In one issue, he challenges the factual
sufficiency to support the finding that termination was in the best interests of the children. We
affirm.
BACKGROUND
A.W. 1 is the mother of J.G.M., D.M., L.G.M., and L.E.M. L.M. is the father of D.M.,
L.G.M., and L.E.M. J.G.R.M. 2 is the father of J.G.M. On August 7, 2017, the Department of
Family and Protective Services (the Department) filed an original petition for protection of the
children, for conservatorship, and for termination of L.M.’s, A.W.’s, and J.G., R.M.’s parental
rights. The Department was appointed temporary managing conservator of the children, and L.M.
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At the conclusion of the trial on the merits, the trial court found, by clear and convincing evidence, that
A.W. engaged in one or more of the acts or omissions necessary to support termination of her parental rights under
subsections (D) (endangering environment), (E) (endangering conduct), (J) (school enrollment and/or child’s absence
from home), and (O) (compliance with a court order) of Texas Family Code Section 161.001(b)(1). The trial court
also found that termination of the parent-child relationship between A.W., J.G.M., D.M., L.G.M., and L.E.M. is in the
children’s best interest. Based on these findings, the trial court ordered that the parent-child relationship between
A.W., J.G.M., D.M., L.G.M., and L.E.M. be terminated. The mother is not a party to this appeal.
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At the conclusion of the trial on the merits, the trial court found, by clear and convincing evidence, that
J.G.R.M., the alleged father of J.G.M., has not registered with the paternity registry under Chapter 160 of the Texas
Family Code. The trial court also found that termination of the parent-child relationship between J.G.R.M. and J.G.M.
is in the child’s best interest. Based on these findings, the trial court ordered that the parent-child relationship between
J.G.R.M. and J.G.M., if any exists or could exist, be terminated. The father of J.G.M. is not a party to this appeal.
and A.W. were appointed temporary possessory conservators with limited rights, duties, access,
and possession.
At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that L.M. engaged in one or more of the acts or omissions necessary to support
termination of his parental rights under subsections (D), (E), (F), (J), and (O) of Texas Family
Code Section 161.001(b)(1). The trial court also found that termination of the parent-child
relationship between L.M., D.M., L.G.M., and L.E.M. is in the children’s best interest. Based on
these findings, the trial court ordered that the parent-child relationship between L.M., D.M.,
L.G.M., and L.E.M. be terminated. This appeal followed.
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action “permanently sunders” the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.
1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2018); In re J.M.T.,
39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any
one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM. CODE
ANN. § 161.001(b)(1) (West Supp. 2018); Green v. Tex. Dep’t of Protective & Regulatory Servs.,
25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second,
termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2) (West
Supp. 2018); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and
convincing evidence, and proof of one element does not alleviate the petitioner’s burden of proving
the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d
at 237.
The clear and convincing standard for termination of parental rights is both constitutionally
and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. Clear
and convincing evidence means “the measure or degree of proof that will produce in the mind of
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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 2019). The burden of proof is upon the party seeking the
deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.
STANDARD OF REVIEW
The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
In determining whether the fact finder met this standard, an appellate court considers all the
evidence in the record, both that in support of and contrary to the trial court’s findings. Id. at 27-
29. Further, an appellate court should consider whether disputed evidence is such that a reasonable
fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002). The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575,
580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).
BEST INTEREST OF THE CHILD
In his sole issue, L.M. argues the evidence is factually insufficient to support a finding that
termination of his parental rights is in the children’s best interest. In determining the best interest
of the child, a number of factors have been considered, including (1) the desires of the child; (2)
the emotional and physical needs of the child now and in the future; (3) the emotional and physical
danger to the child now and in the future; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist these individuals; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate
the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
The family code also provides a list of factors that we will consider in conjunction with the
above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2019). These
include (1) the child’s age and physical and mental vulnerabilities; (2) the magnitude, frequency,
and circumstances of the harm to the child; (3) the results of psychiatric, psychological, or
developmental evaluations of the child, the child’s parents, other family members, or others who
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have access to the child’s home; (4) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home; (5) the willingness and ability of the child’s
family to seek out, accept, and complete counseling services and to cooperate with and facilitate
an appropriate agency’s close supervision; (6) the willingness and ability of the child’s family to
effect positive environmental and personal changes within a reasonable period of time; (7) whether
the child’s family demonstrates adequate parenting skills; and (8) whether an adequate social
support system consisting of an extended family and friends is available to the child. See id. §
263.307(b)(1), (3), (6), (8), (10), (11), (12), (13).
The evidence need not prove all statutory or Holley factors in order to show that
termination of parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re
J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.–Houston [14th Dist.] 2003, no pet.). In other words, the
best interest of the child does not require proof of any unique set of factors nor limit proof to any
specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.).
Undisputed evidence of just one factor may be sufficient in a particular case to support a finding
that termination is in the child’s best interest. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex. App.—
Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will not
support such a finding. Id. Evidence supporting termination of parental rights is also probative in
determining whether termination is in the best interest of the child. See In re C.H., 89 S.W.3d at
28-29. We apply the statutory and Holley factors below.
Analysis
This case involves four children, J.G.M., ten years old, D.M., eight years old, L.G.M., six
years old, and L.E.M., two years old, at the time of trial. The case began on August 4, 2017 when
law enforcement responded to a disturbance call at the American Dream Inn motel (“motel”).
According to A.W. and L.M., they were drinking a mixture of whiskey and an energy drink, and
smoking marijuana in their vehicle while the children were inside the motel room. A.W. stated that
another man began screaming at L.M. and threatening to kill him. She went towards the man and
stated that he lunged at her and stabbed her. Law enforcement arrived and arrested A.W. and L.M.
for public intoxication. Jerry Ramsey, an officer with the Longview Police Department, testified
that he responded to the disturbance call and concentrated on the children involved. He testified
that the entire motel room was covered in trash, cigarette butts, and there was a “very, very” strong
odor of feces and urine as he opened the door. Ramsey stated that on the night stand and throughout
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the room, there were half empty bottles of alcohol and whiskey, and a prescription bottle, all clearly
accessible to the children.
According to Ramsey, L.E.M., the infant, was inside a Pack ‘N Play crib. He picked
L.E.M. up and after looking for a bottle, asked J.G.M. for a bottle. J.G.M. gave Ramsey a plastic
bottle and he discovered the beginnings of mold on the lid. He also looked around for clothing to
dress L.E.M. He found a “onesie” but it was soaked in urine. Ramsey ended up wrapping L.E.M.
in the one blanket that did not have mice feces in it and did not smell “that bad.” He stated that
rat or mice feces was in the Pack ‘N Play. The children mentioned that there was a rat or mouse
in the room, that they played with it, and had named it. He observed a rat or mouse run underneath
one of the beds.
Ramsey discovered a large pile of used feminine hygiene products, tampons and pads, in
the bathroom. He was concerned with the children’s safety because there was blood on the
feminine hygiene products, and it was very unsanitary. There was also mold on the bathtub.
Ramsey took the children to the Longview Police Department. The children smelled strongly of
body odor and urine, and officers coming in the front lobby noticed the smell as they walked in.
All the children were dirty as if they had not had a bath all day and their clothes were dirty.
Nikki Cassin, an officer with the Longview Police Department, testified that she was called
to assist Ramsey with the children at the police department. She observed that L.E.M. was dirty
and the children smelled as if they had not bathed in several days. L.E.M. was awake and “very
filthy.” Cassin took some baby wipes and cleaned the baby’s face, neck, feet, hands, and body.
She also changed the baby’s diaper because it was saturated. She observed some white substance
on the baby’s labia and used a baby wipe to clean around her vaginal opening. Cassin stated that
this could have been from an infection, abuse, or not having a bath for a very long time. She
believed that L.E.M.’s condition was not that of a normal child. She was “significantly” concerned
at the time.
According to Brie’Unna Ivory, an investigator with the Department, both parents were
intoxicated when she met them after their arrest. She visited them in the Gregg County jail and
both parents admitted to drinking whiskey mixed with an energy drink. L.M. admitted that they
were smoking marijuana and checking on the children. Ivory was concerned that the children were
in a motel room without supervision and that the parents were outside, intoxicated to the point that
they were arrested for public intoxication. The children were removed and placed in foster care.
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Criminal History. On July 7, 2014, L.M. was convicted of assault—family violence, a class
A misdemeanor, against A.W. and was sentenced to one year in county jail. The indictment also
included an enhancement paragraph that L.M. was previously convicted of an offense against a
member of his family, member of his household, or a person with whom he had a dating
relationship in 2013. L.M. was convicted of assault causing bodily injury—family violence, a
class A misdemeanor, against A.W. on April 17, 2016, and was sentenced to 250 days in the county
jail. L.M. was also convicted of assault causing bodily injury—family violence, a class A
misdemeanor, against A.W. on May 7, 2016, and was sentenced to 250 days in the county jail.
L.M. was convicted of criminal trespass on September 15, 2017, by intentionally or knowingly
entering the property of another without the effective consent of the owner. He was sentenced to
fifteen days in the county jail. L.M. also admitted that he had twice been convicted of driving while
intoxicated. A.W. described their prior relationship as “violent” and L.M. described it as
“volatile.”
Prior Department Case. In a prior Department case, there were allegations that L.G.M.
cried for “Daddy [to] get off Mommy.” The investigator found drug paraphernalia in their living
space. A.W., L.M., J.G.M., D.M., and L.G.M. tested positive for methamphetamines. The children
were removed and after completing services, including parenting classes and obtaining stable
housing, the children were returned to the parents. The parents signed a mediated settlement
agreement. However, shortly thereafter, A.W. discontinued her mental health medications, halved
J.G.M.’s medications, and both parents began drinking, smoking marijuana, and panhandling, all
in violation of their mediated settlement agreement. Further, their housing situation deteriorated
when they were evicted from their home shortly after the case ended.
Desires of the Child. According to the CASA volunteer, J.G.M. does not want to return to
live with his mother or stepfather, stating that it was best for him. He loves them and stated that
his father was L.M. He described situations regarding drug use, violence, and alcohol. J.G.M.,
D.M., and L.G.M. describe panhandling with L.M. According to the children, they usually threw
away food given to them because, as L.M. explained, other people would not give them money if
they had food. According to J.G.M., L.M. would tell them to not wear shoes and walk away from
their vehicle to make them appear as if they did not have shoes or a vehicle. Regarding L.E.M.,
the court found that she was too young to give an indication of her desires and there was evidence
that she has become bonded to her foster care placement and is doing well.
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Emotional and Physical Needs of the Children. J.G.M. and L.G.M. are placed separately
from D.M. and L.E.M. Initially, J.G.M.’s behavior problems caused him to be in a “specialized”
foster home and the other foster home only accepted “basic” children. However, L.G.M.’s level
of care increased, and she was placed with J.G.M.
According to Kemyisha Daniels Scott, a conservatorship worker with the Department,
J.G.M.’s behaviors changed over the course of the case. At first, he was very, very nervous, erratic,
and was not used to being told “no.” If J.G.M. was not allowed to do something, he threw fits,
broke his glasses, and damaged property. Now, J.G.M. is able to adjust his behavior and
sometimes needs “alone time” in his bedroom. He has learned structure and techniques to de-
escalate. Scott does not believe that his home life, if returned, would have that same stability or
structure. Nor, based on prior instances, does she believe that J.G.M.’s medication would be
maintained.
L.G.M. has some behavioral issues. She was not accustomed to being told “no.” Her
teacher said that if she does not want to do something, she “flat out” will not do it. She is in
counseling and on medication. Scott is afraid that the children will relapse if returned to their
parents. J.G.M. will not be medicated nor will he and L.G.M. have the structure that they are used
to. Scott believes there will be issues in the home based on the history of the family and that the
behaviors and circumstances would add to the likelihood of relapse. According to A.W., all the
children are behind in school. The court found the evidence “overwhelming” that the children had
extreme emotional needs in the past and will continue to have emotional needs in the future.
Emotional and Physical Danger to the Children. The parents admitted to violence in their
relationship in the past. A.W. and L.M. stated that A.W. is on medication for her mental health
issues and that they no longer argue. However, they do not have stable housing, having rented a
mobile home only the month before trial. Nor did they provide receipts of their business before
trial. According to A.W. and L.M., their cleaning business makes about $2,000.00 per month.
However, as of September 2017, the business only deposited $165.26. According to L.M., their
clients pay cash or by credit card.
Nonetheless, L.M.’s substance abuse counselor testified that he had a positive attitude
about working his services. Both parents were eligible for discharge and neither tested positive
for drugs during the case. However, Scott stated that L.M. did not follow the recommendations of
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the psychiatrist who advised medication for L.M.’s diagnosis of bipolar disorder. L.M. refused
medications, and Scott stated that such refusal was a violation of the service plan.
In its oral ruling, the court found that there was, “without question,” emotional and physical
danger to the children by the parents including domestic violence in small confined spaces such as
hotel rooms that placed the children in physical danger. The evidence also showed that the children
may have witnessed sexual activity between the parents on some occasions that was emotionally
damaging to them. L.M. denied any sexual allegations against L.G.M. and denied that the children
watched he and A.W. have sexual relations. He blamed a movie that the children watched that
contained strong sexual content. He stated that the allegation for “Daddy [to] get off Mommy”
purportedly made by L.G.M. was made before she was able to speak.
Parental Abilities. Both parents stated that they looked after the children while intoxicated.
A.W. admitted that when she and L.M. wanted to have sex, they locked the children out of the
motel room. She said that L.E.M. stayed in the room, but no one supervised the children. A.W.
noted that J.G.M. had a positive drug screen for cocaine and that it must have occurred during one
of the times that he was locked out. The CASA volunteer stated that J.G.M. missed being able to
be away from the motel room for most of the day, being old enough at eight years old to not have
to stay in the motel room. The volunteer was concerned that he was completely unsupervised.
The parents acknowledged that the motel room was dangerous to the children and not a safe
environment.
In its oral ruling, the court found that there was very little evidence that L.M. has been able
to reflect any real parenting ability in the past that would be in the best interest of the children.
The court found that the parents have been unable to support themselves financially, unable to
provide stability, and have engaged in conduct harmful to the children in front of them, with the
use of drugs, domestic violence, and potentially sexual activity.
Programs Available. The evidence shows that A.W. has been to the Andrews Center and
received medication for her mental health issues. L.M. and the children have also been in
counseling and the children are receiving appropriate medications. However, in the prior case,
A.W. stopped both her medications and J.G.M.’s medications. No other programs were mentioned
as helping the parents in the future.
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Plans for Children. L.M.’s goals for the children include enrolling them in school, having
them receive counseling, and giving them the attention that they need. The Department’s goals
include termination of the parental rights and adoption.
Stability of the Home. At the time of trial, the parents were living in a mobile home that
they had for approximately one to two months. The evidence showed that the children lived in
recreational vehicles, homeless shelters, and mobile homes, moving approximately five times
before moving to the motel at the beginning of the case. Since the case began, the parents have
been homeless and moved three other times. There has been no stability for the children.
According to L.M., the parents have more financial stability because of their cleaning business.
The business appears to be making some money. Both parents stated that the income was enough
to support themselves and the children, although L.M. agreed that they may need help with food.
Neither parent stated whether they could afford medical or dental care, both of which the children
need.
The court found that the evidence was “overwhelming” that there has been no stability
during the vast majority of the children’s lives, having to move from place to place, hotel to hotel
to hotel, and to recreational vehicle to trailer house. According to the court, the parents provided
no stability “whatsoever” which was “incredibly” emotionally damaging to the children.
Omissions and Excuses for those Omissions. As noted above, the children’s living
environment at the beginning of the case was dangerous and unsanitary. Both parents admitted to
abusing alcohol and marijuana, and to looking after the children while highly intoxicated. The
parents provided no stability for the children and panhandled with them more than once. Neither
parent excused their previous behavior and L.M. stated he was “dumbfounded” that he let himself
put the children in these situations. He said that the lack of financial stability, A.W.’s mental
health problems, and their admitted “volatile” relationship put them in the situation leading to this
case. The court found the evidence clear that the parents’ omissions were not a one-or-two-time
occasion, but that these activities occurred throughout the children’s lives.
The CASA volunteer and the conservatorship worker believed that it was in the children’s
best interest for L.M.’s parental rights to be terminated. The CASA volunteer stated that L.M. was
unable to give the children a stable home devoid of drug use, violence, and emotional and physical
neglect. The conservatorship worker did not believe that L.M. demonstrated the ability to provide
for the children including stable housing and is still dealing with his and A.W.’s mental health
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issues. Moreover, the prior case and circumstances shows a pattern of behavior that is similar to
the current case.
Conclusion
After viewing the evidence in the light most favorable to the finding and applying the
statutory and Holley factors, we conclude that a reasonable trier of fact could have formed a firm
belief or conviction that termination of L.M.’s parental rights was in the best interest of the
children. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. Although
some evidence might weigh against the finding, such as L.M. being clean since the case began,
financial stability from a cleaning business, and recent housing, this evidence is not so significant
that a reasonable fact finder could not have reconciled this evidence in favor of its finding and
formed a firm belief or conviction that terminating L.M.’s parental rights is in the children’s best
interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. Accordingly,
we overrule L.M.’s sole issue regarding best interest.
DISPOSITION
Having overruled L.M.’s sole issue, we affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Opinion delivered July 24, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 24, 2019
NO. 12-19-00066-CV
IN THE INTEREST OF J.G.M.,
D.M., L.G.M. & L.E.M., CHILDREN
Appeal from the 307th District Court
of Gregg County, Texas (Tr.Ct.No. 2017-1506-DR)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.