in the Interest of C.D. and K.D., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00070-CV
IN THE INTEREST OF C.D. AND
K.D., CHILDREN
----------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
----------
MEMORANDUM OPINION1
----------
Appellants M.D. (Mother) and J.D. (Father) appeal the termination of their
parental rights to their children C.D. (Caitlin) and K.D. (Kristen).2 Appellant A.A.
(Grandmother)3 appeals the termination of her permanent managing
1
See Tex. R. App. P. 47.4.
2
We use aliases for all of the children and all foster parents and adoptive
parents throughout this opinion. See Tex. R. App. P. 9.8(b)(2).
3
Grandmother is the biological grandmother of Mother and adopted Mother
when she was born. She is therefore both the grandmother and great-
grandmother of the children.
conservatorship of Caitlin and Kristen. A jury found by clear and convincing
evidence that Mother and Father had (1) knowingly placed or knowingly allowed
the children to remain in conditions or surroundings that endangered their
physical or emotional well-being and (2) engaged in conduct or knowingly placed
the children with persons who engaged in conduct that endangers the children’s
physical or emotional well-being; that Mother constructively abandoned the
children; and that termination of the parent-child relationship would be in the
children’s best interest. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (2)
(Vernon Supp. 2010). The jury also found that the children’s current foster
parents (the Sullivans) should be their permanent managing conservators.
In four issues, Father challenges the legal and factual sufficiency of the
evidence supporting the jury’s endangerment findings. In six issues, Mother
challenges the legal and factual sufficiency of the evidence supporting the jury’s
endangerment findings and the finding that Mother constructively abandoned the
children. Neither Mother nor Father challenges the jury’s finding that it would be
in the children’s best interest to be placed with the Sullivans.
Grandmother challenges the trial court’s order terminating her
conservatorship; the trial court’s failure to submit a jury question on whether
Grandmother should be named as possessory conservator; the trial court’s
denial of her motion to strike the intervention of the Sullivans; and the termination
of the parent-child relationship of both Mother and Father. Grandmother’s
submission on appeal is one paragraph containing no legal authorities or
2
argument on her issues. While we note that Grandmother prepared her brief
without the assistance of counsel, we also recognize that pro se litigants must
abide by the same standards as licensed attorneys and comply with applicable
laws and rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.
2005) (stating that pro se litigants ―are not exempt from the rules of procedure‖
and suggesting that ―[h]aving two sets of rules—a strict set for attorneys and a
lenient set for pro se parties—might encourage litigants to discard their valuable
right to the advice and assistance of counsel‖); Mansfield State Bank v. Cohn,
573 S.W.2d 181, 185 (Tex. 1978) (―Litigants who represent themselves must
comply with the applicable procedural rules, or else they would be given an unfair
advantage over litigants represented by counsel.‖).
Texas Rule of Appellate Procedure 38.1(i) states that an appellant's ―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).
Furthermore, as a general rule, an appellate court will not consider an issue
raised by an appellant where the appellant fails to provide any legal argument to
support his claim. See Hamilton v. Williams, 298 S.W.3d 334, 337 (Tex. App.—
Fort Worth 2009, pet. denied). This is so because an issue unsupported by
citation to any legal authority presents nothing for the court to review. AMX
Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 525 (Tex. App.—Fort
Worth 2009, no pet.) (citing Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678
(Tex. App.—Dallas 2004, pet. denied (2005)). Grandmother has failed to
3
adequately brief her issues and to preserve her complaints. We therefore
overrule all of Grandmother’s issues. We address Mother’s and Father’s issues
below.
I. Factual and Procedural Background
Mother was first married in 1999 when she was sixteen years old.
Mother’s first child, Christopher, was born in 2002. Grandmother testified that
she took care of Christopher because Mother ―was not a responsible mother.‖
Child Protective Services (CPS) removed Christopher because Mother’s brother,
John, called them to report that Mother had put Christopher (then two or three
months old) in the front seat of her car and ―fishtailed‖ out of a driveway. John
and his wife Brenda took conservatorship of Christopher. Mother voluntarily
relinquished her parental rights to Christopher in 2006 because, according to
Grandmother, ―she felt that he had been with them long enough that it wasn’t
right to even try to get him back.‖
Mother remarried and had her second child, Katrina, in 2004. About nine
days after Katrina was born, Mother dropped her after she had been drinking.
CPS removed Katrina and placed her with Brenda and John. Also in 2004,
Mother moved to Arkansas and passed two stolen checks with a total value of
$610. She was placed on probation for four years. Mother’s parental rights to
Katrina were terminated in 2007 and John and Brenda adopted Katrina in 2008.
John and Brenda were also in the process of adopting Christopher when John
died.
4
Mother was pregnant with Caitlin when she met Father in 2005.4 Father,
who was twenty-eight years old at trial, started taking drugs at age fourteen or
fifteen. By age sixteen, he was doing methamphetamines and LSD. His first
arrest was at age twenty-two for forgery. At the time of trial, Father had been
convicted of ten felonies.
Caitlin was born in January 2006. Between February 2006 and May 2007,
Mother also passed approximately twenty-three bad checks with a total value of
$4,925.48. In April 2007, Mother stole Grandmother’s debit card and used it to
make $2,071.84 in unauthorized purchases.
Kristen was born in January 2007. The hospital kept Kristen for about ten
days to treat her for strep. Before Kristen was released to go home, Mother and
Father were arrested. Their roommate had reported to the police that Father had
been ―up for a week on drugs‖ and had threatened to beat her up. Police found
nine baggies of marijuana, which Father admitted to smoking with Mother, and a
digital scale. Father also admitted that he used a pipe found in the bathroom for
smoking methamphetamine. Father was convicted of the possession of a
controlled substance and drug paraphernalia, and sentenced to five years and
released on parole after ten months. The possession charges against Mother
were dropped, but she went to prison for the fraudulent use of Grandmother’s
4
Father is not Caitlin’s biological father. He is the adjudicated father and is
listed as her father on her birth certificate. Mother’s ex-husband, J.I., Caitlin’s
presumed father, and J.D.C., Caitlin’s alleged father, both had appointed counsel
below and were both dismissed from the suit in an agreed order.
5
debit card and the violation of Arkansas’s Hot Check Law. See Ark. Code Ann.
§ 5-37-302 (2010). Her probation for her first hot check violation in 2004 was
also revoked. An Arkansas court gave Grandmother temporary possessory
conservatorship of Caitlin and Kristen after the parents were arrested. She
returned to Texas with the children.
Mother was released in April 2008 and came to Texas to live with
Grandmother. Mother got a job but quit after about a month. Instead of paying
child support to Grandmother as ordered by the Arkansas court, Mother used the
money she earned to move back to Arkansas to be with Father, leaving the kids
with Grandmother in Texas. Grandmother testified that Mother stole some of her
checks when she left.
In July 2008, Grandmother was arrested after leaving the children in a car
while she went into a grocery store. The children were taken into custody by
CPS and CPS filed a petition to terminate Mother and Father’s parental rights. A
hearing was held in August 2008, which both Mother and Father attended, but
they were unable to take the children back because of ―financial issues.‖ The
children were placed in an emergency shelter and three successive foster homes
before finally being placed with the Sullivans.5
In September 2008, Father was arrested for possession. He was found
with .3 grams of methamphetamine, ten grams of marijuana, one tablet of
5
The Sullivans are Brenda’s sister and brother-in-law. Brenda is Mother’s
deceased brother’s wife.
6
hydrocodone, and twenty-four tablets of alprazolam. He was convicted of
possession of a controlled substance and sentenced to five years in prison. In
October 2008, Mother was not living at a stable address, which was a violation of
her parole, and she also returned to prison.
In January 2009, CPS filed a permanency plan with the trial court in which
it stated that it was in the children’s best interest that the Sullivans be granted
permanent possessory conservatorship. The termination trial was held in
January 2010. Father, who was released on parole, and Grandmother attended,
and Mother, who was still incarcerated in Arkansas, appeared by counsel. The
jury found that Mother and Father’s parental rights should be terminated under
section 161.001 of the family code and awarded permanent possessory
conservatorship to the Sullivans. This appeal followed.
II. Legal and Factual Sufficiency
Both Mother and Father complain that the evidence presented at trial is
legally and factually insufficient to support the trial court’s termination of their
parental rights under section 161.001 of the family code.
CPS argues that because Mother did not file a motion for new trial in the
trial court, Mother failed to preserve her factual sufficiency challenge. The family
code states that an issue is preserved through ―a timely filed statement of the
points on which the party intends to appeal or in a statement combined with a
motion for new trial.‖ See Tex. Fam. Code. Ann. § 263.405(i) (Vernon 2008).
However, the rules of civil procedure also require a motion for new trial to
7
preserve factual insufficiency complaints in jury trials. Tex. R. Civ. P. 324(b)(2);
see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (applying Rule 324 to
termination cases). Mother timely filed a statement of points, which addressed
both her legal and factual sufficiency challenge, but she did not file a motion for
new trial. Thus, she has not preserved her factual sufficiency challenge. We
overrule Mother’s second, fourth, and sixth issues. We will review only her legal
sufficiency challenge below. See Tex. R. Civ. P. 324.
A. Standards of Review
A parent’s rights to ―the companionship, care, custody, and management‖
of his or her children are constitutional interests ―far more precious than any
property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); M.S., 115 S.W.3d at 547. ―While parental rights are of
constitutional magnitude, they are not absolute. 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.‖ In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a
termination case, the State seeks not just to limit parental rights but to erase
them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except for the child’s right to
inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and
strictly construe involuntary termination statutes in favor of the parent. Holick,
8
685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth
2008, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may
not be based solely on the best interest of the child as determined by the trier of
fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In
this case, the State alleged proof under subsections (D) and (E) of section
161.001 of the family code as to Father, and subsections (D), (E), and (N) as to
Mother. Sections (D) and (E) state that the court may order termination of the
parent-child relationship if the court finds that the parent has either ―knowingly
placed 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.‖ Tex. Fam.
Code Ann. § 161.001(1)(D), (E). Section (N) allows for termination if the parent
has constructively abandoned the child. Id. § 161.001(1)(N).
Termination decisions must be supported by clear and convincing
evidence. Id. § 161.001; see id. § 161.206(a) (Vernon 2008). Evidence is clear
and convincing if it ―will produce in the mind of the trier of fact a firm belief or
9
conviction as to the truth of the allegations sought to be established.‖ Id.
§ 101.007 (Vernon 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the
evidence in the light most favorable to the finding and judgment. Id. This means
that we must assume that the factfinder resolved any disputed facts in favor of its
finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We must consider, however, undisputed evidence even if it is contrary to the
finding. Id. That is, we must consider evidence favorable to termination if a
reasonable factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness-credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the factfinder’s
province. Id. at 573, 574. And even when credibility issues appear in the
10
appellate record, we must defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that the parents violated subsection (D), (E), or (N) of section 161.001(1). Tex.
Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the entire
record, the disputed 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 in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
―Endanger‖ means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under (E), the relevant inquiry is whether evidence exists that the
endangerment of the children’s physical well-being was the direct result of the
parents’ conduct, including acts, omissions, or failures to act. See J.T.G., 121
S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,
termination under (E) must be based on more than a single act or omission; the
statute requires a voluntary, deliberate, and conscious course of conduct by the
parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). It
is not necessary, however, that the parents’ conduct be directed at the children
11
or that the children actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121
S.W.3d at 125. The specific danger to the children’s well-being may be inferred
from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W.,
129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). To determine
whether termination is necessary, courts may look to parental conduct occurring
both before and after the children’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex.
App.—Fort Worth 2001, no pet.).
B. Sufficient Evidence Supports Termination Under Section 161.001(E)
We hold that legally and factually sufficient evidence supports the jury
finding that Father engaged in conduct that endangered the children’s physical
well-being and that legally sufficient evidence supports the jury finding that
Mother engaged in conduct that endangered the children’s physical well-being.
Neither parent has ever paid child support or otherwise contributed money
for the children’s care. After her release in 2008, Mother did not put her children
first by staying with Grandmother in Texas and earning money to pay for her
children’s care. Instead what money Mother did make she used to move back to
Arkansas to be with Father, leaving the children with Grandmother in Texas.
Mother also stole some of Grandmother’s checks when she left, with full
knowledge that Grandmother was using her own money to support the children.
Neither parent has provided stable and sufficient housing for the children.
Instead of staying at Grandmother’s home with her children, Mother returned to
Arkansas to be with Father. They were evicted from their home because they
12
could not pay their rent and Mother was homeless a few months later, thereby
violating her parole. Father testified at trial that he was unable to provide the
children with a stable home because he had only recently been released from
prison. He said, ―At this time I don’t think it is wise for me to have possession of
my kids because of the fact that I don’t have a stable home to put them in, and I
believe that’s important.‖
Both parents have had life-long battles with drug addiction. There was
testimony that Mother was addicted to cocaine and methamphetamine and that
she smoked marijuana. Father testified to using marijuana, LSD, cocaine, and
methamphetamine. Although Father testified that he is currently not addicted to
drugs, he admitted that he had previously discontinued using drugs during
Mother’s pregnancy but began using again right after Kristen’s birth. The drugs
were found in the bedroom that Mother and Father shared with Caitlin.
Drug use and its effect on a parent's life and his ability to parent may
establish an endangering course of conduct. In re R.W., 129 S.W.3d 732, 739
(Tex. App.—Fort Worth 2004, pet. denied). Likewise, evidence of criminal
conduct, convictions, and imprisonment prior to the birth of a child will support a
finding that a parent engaged in a course of conduct that endangered the child's
well-being. J.T.G., 121 S.W.3d at 133. While imprisonment alone does not
constitute a continuing course of conduct that endangers the physical or
emotional well-being of a child, it is a fact properly considered on the issue of
endangerment. Boyd, 727 S.W.2d at 533–34. The State need not show
13
incarceration was a result of a course of conduct endangering the child; it need
only show incarceration was part of a course of conduct endangering the child.
Id. Thus, if the evidence, including imprisonment, proves a course of conduct
that has the effect of endangering the child, the requirement of showing that the
endangerment of the child’s physical or emotional well-being was the direct result
of the parent’s conduct is met. Id.
Mother has been imprisoned three times. Mother was arrested for the third
time only days after giving birth to Kristen and before Kristen was even released
from the hospital. At the time of trial, Father was twenty-eight years old and had
been convicted of ten felonies. Mother and Father’s incarceration had affected
their ability to ensure that their children were properly taken care of and indicated
a course of conduct that was endangering to the children. Moreover, both
parents’ incarcerations prevented them from finding better living conditions and
financially supporting the children. The evidence showed that Mother and
Father’s continued criminality had contributed to the dangerous environment in
which the children had lived. See In re M.R., 243 S.W.3d 807, 819 (Tex. App.—
Fort Worth 2007, no pet.) (observing that father’s incarceration affected his ability
to ensure that his child was properly taken care of, prevented him from finding
better living conditions or providing financial support for the child, and indicated a
course of conduct that was endangering to his child). Each parent repeatedly
committed criminal acts that subjected them to the possibility of incarceration.
While imprisonment alone is not a basis to terminate parental rights, it is an
14
appropriate factor to consider. See In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.
App.—Fort Worth 2009, no pet.). Each time these parents were jailed, they were
absent from their children’s lives and unable to provide a home or support, which
negatively impacted the children’s living environment and well-being. Id.; see
D.M., 58 S.W.3d at 812–13 (noting that mother’s frequent incarcerations affected
her ability to properly care for her children); M.R., 243 S.W.3d at 819; In re
C.L.C., 119 S.W.3d 382, 393 (Tex. App.—Tyler 2003, no pet.) (holding that it is
sufficient that the parent was aware of the potential for danger to the child and
disregarded that risk); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied) (holding that the creation of an ―emotional vacuum‖
in the child's life by being absent for more than twelve months due to
incarceration was evidence of endangering the child’s emotional well-being).
Mother could have been released in time to attend the termination hearing, but
her frequent misbehavior in prison delayed her release. See In re J.N.R., 982
S.W.2d 137, 143 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (affirming the
termination of father’s parental rights based in part on evidence that father
continued to engage in the criminal activity that resulted in his incarceration even
after knowing his parental rights were in jeopardy). The CASA advocate testified
that CASA changed its plan from reunification to termination when it discovered
that the parents had misbehaved in prison so to as extend their confinement.
The advocate said, ―[W]e were coming on nine months, they were still
15
incarcerated. I had learned they had done some things to make their
incarceration even longer.‖
There was much testimony regarding Mother’s selfish nature, that she’s
―too prone to care about what [she] wants instead of . . . what’s the best thing.‖
Grandmother stated that she did not think Mother showed respect for the process
of getting her children back. Brenda, the guardian of Mother’s oldest child and
adoptive parent of Mother’s second child, testified that she doesn’t believe
Mother will ever be an effective parent. Brenda testified that Mother told CPS
that Brenda had ―kidnapped‖ the children that Brenda has custody of. Mother
also alleged that Brenda had sexually assaulted Katrina when she was eight
months old. Brenda testified that the accusations were unfounded and she was
never charged for anything. Grandmother stated that the children receive no
benefit from having Mother or Father in their life at the moment. As of the date of
trial, Grandmother’s husband (Grandfather) did not think Mother was able to
raise her children. Grandmother testified that she thought Father was a good
father, but admitted that he had only been present in Caitlin’s life for the first
year. She also described him as being a selfish person who makes bad
decisions. Grandfather thought that Father was maturing, but as of the date of
trial, he was still unable to take the children.
We hold there is legally and factually sufficient evidence that Father
endangered the children’s physical well-being and that there is legally sufficient
evidence that Mother endangered the children’s physical well-being. We
16
overrule Father’s third and fourth issues and Mother’s third issue. Because,
along with a best interest finding, a finding of only one ground alleged under
section 161.001(1) is necessary to support a judgment of termination, we need
not address Mother and Father’s remaining issues. See Tex. R. App. P. 47.1;
see also In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no
pet.); In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth 2007, no pet.).
III. Conclusion
Having overruled all of the appellants’ dispositive issues, we affirm the trial
court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: May 5, 2011
17