in the Interest of B. M., and J. M., Children

NO. 12-18-00094-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE
B.M., AND J.M., § COUNTY COURT AT LAW NO. 2
CHILDREN § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
A.B. and J.M. appeal the termination of their parental rights. In three issues each, they
challenge the order of termination. We affirm.
BACKGROUND
A.B. is the mother and J.M. is the father of B.M. and J.M.1.1 On April 27, 2017, the
Department of Family and Protective Services (the Department) filed a first amended original
petition for protection of B.M. and J.M.1, for conservatorship, and for termination of A.B.’s and
J.M.’s parental rights. The Department was appointed temporary managing conservator of the
children, and A.B. and J.M. were appointed temporary possessory conservators with limited rights
and duties.
At the conclusion of the trial on the merits, the jury found that the parent-child relationship
between A.B., B.M., and J.M.1 should be terminated, and that the parent-child relationship
between J.M., B.M., and J.M.1 should be terminated. Thus, the trial court found, by clear and
convincing evidence, that A.B. engaged in one or more of the acts or omissions necessary to
support termination of her parental rights under subsections (D), (E), (M), and (O) of Texas Family
Code Section 161.001(b)(1). The trial court also found that termination of the parent-child
relationship between A.B., B.M., and J.M.1 is in the children’s best interest. Based on these
1
The father and the younger child have the same initials. We will refer to the younger child as “J.M.1.”
findings, the trial court ordered that the parent-child relationship between A.B., B.M., and J.M.1
be terminated.
Further, the trial court found, by clear and convincing evidence, that J.M. engaged in one
or more of the acts or omissions necessary to support termination of his parental rights under
subsections (D), (E), and (O) of Texas Family Code Section 161.001(b)(1). The trial court also
found that termination of the parent-child relationship between J.M., B.M., and J.M.1 is in the
children’s best interest. Based on these findings, the trial court ordered that the parent-child
relationship between J.M., B.M., and J.M.1 be terminated. This appeal followed.
ADVERSARY HEARING
As part of A.B.’s second issue, she argues that the trial court’s failure to hold an adversary
hearing until ten months after the children were removed violated her rights to procedural and
substantive due process. In J.M.’s third issue, he argues that the adversary hearing was unduly
delayed, that the delay unfairly prejudiced the parents in their attempts to have the children
returned, and that the general rule of mandamus should not apply.2
Within fourteen days after the Department takes possession of a child, the trial court must
hold a full adversary hearing. See TEX. FAM. CODE ANN. § 262.201(a) (West Supp. 2017); In re
E.C.R., 402 S.W.3d 239, 247 (Tex. 2013). At the conclusion of the hearing, the trial court shall
order the return of the child to the parents unless the court finds sufficient evidence to satisfy a
person of ordinary prudence and caution that (1) “there was a danger to the physical health or
safety of the child” which was caused by an act of the person entitled to possession and for the
child to remain in the home is contrary to the welfare of the child; (2) “the urgent need for
protection required the immediate removal of the child and reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were made to eliminate or prevent the
child’s removal;” and (3) “reasonable efforts have been made to enable the child to return home,
but there is a substantial risk of a continuing danger if the child is returned home.” TEX. FAM.
CODE ANN. § 262.201(g). A trial court’s decision to allow the Department to maintain custody of
a child following an adversary hearing is reviewable, if at all, through a petition for writ of
2
In the subsection entitled “Issues Presented” in his brief, J.M. argues the evidence is legally and factually
insufficient to terminate his parental rights pursuant to Sections (D), (E), and (O) of Texas Family Code Section
161.001(b)(1). However, in the body of his argument, he presents the issue regarding the adversary hearing as his
third issue.
2
mandamus. See In re J.D.S., 494 S.W.3d 387, 389 (Tex. App.—Waco 2015, no pet.); In re Allen,
359 S.W.3d 284, 288 (Tex. App.–Texarkana 2012, orig. proceeding) (op. on reh’g). Here, the trial
court held an adversary hearing and signed a temporary order following that hearing, finding that
it was contrary to the welfare of the children to remain in the parents’ home, and that there was a
substantial risk of a continuing danger if the children were returned home. There is nothing in the
record to indicate that either A.B. or J.M. filed a petition for writ of mandamus challenging this
temporary order or the timing of the adversary hearing.
Moreover, it is well-settled that a temporary order is superseded by entry of a final order,
rendering moot any complaint about the temporary order. See In re A.K., 487 S.W.3d 679, 683
(Tex. App.–San Antonio 2016, no pet.); In re J.D.L., No. 12-17-00225-CV, 2017 WL 6523183,
at *2 (Tex. App.—Tyler Dec. 21, 2017, pet. denied) (mem. op.). In other words, a temporary order
which makes findings to support removal under Texas Family Code Section 262.201(g) is
superseded by the entry of a final order of termination. See In re Z.R.M., No. 04-15-00063-CV,
2015 WL 4116049, at *5–6 n. 5 (Tex. App.–San Antonio July 8, 2015, no pet.) (mem. op.)
(complaints about child’s removal not proper in context of appeal from final order terminating
parental rights); L.F. v. Dep’t of Family and Protective Servs., Nos. 01-10-01148-CV, 01-10-
01149-CV, 2012 WL 1564547, at *14 (Tex. App.–Houston [1st Dist.] May 3, 2012, pet. denied)
(mem. op.) (issue concerning child’s emergency removal moot after trial court rendered final
order). Because the trial court rendered a final order of termination, A.B.’s and J.M.’s complaints
about the adversary hearing and the temporary order resulting from that hearing are moot and not
subject to review on appeal. See In re A.K., 487 S.W.3d at 683; L.F., 2012 WL 1564547, at *14.
We overrule that portion of A.B.’s second issue, and J.M.’s third issue, regarding the adversary
hearing.
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.).
3
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. 2017); 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. 2017); 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. 2017); 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
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 2014). 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.
TERMINATION OF MOTHER’S PARENTAL RIGHTS
As part of her second issue, A.B. argues that termination of her parental rights pursuant to
subsection (M) of Texas Family Code Section 161.001(b)(1) was unconstitutional because she was
not allowed a prompt and meaningful ability to challenge the Department’s removal of her
children. Thus, she contends, she was subjected to having her parental rights terminated solely on
past conduct. The court may order termination of the parent-child relationship if it finds by clear
and convincing evidence that the parent had her parent-child relationship terminated with respect
to another child based on a finding that the parent’s conduct was in violation of Section
161.001(b)(1)(D) or (E). See TEX. FAM. CODE ANN. § 161.001(b)(1)(M) (West Supp. 2017).
The record shows that A.B.’s fourth child tested positive for methamphetamine at birth,
and that her parental rights to that child were terminated. During A.B.’s testimony, a certified
copy of a decree of termination filed in the 304th District Court of Dallas County, Texas, and
signed by the trial court on July 19, 2012, was offered and admitted into evidence without
4
objection. The decree of termination showed that the district court found that A.B. engaged in one
or more of the acts or omissions necessary to support termination of her parental rights to her
fourth child under subsections (D) and (E) of Texas Family Code Section 161.001(b)(1), and that
termination of the parent-child relationship between A.B. and her fourth child was in the child’s
best interest. Thus, the district court ordered that the parent-child relationship between A.B. and
her fourth child be terminated. This evidence thus constitutes undisputed conclusive evidence of
a violation of section 161.001(b)(1)(M). See Harris v. Tex. Dep’t of Family and Protective Svcs.,
228 S.W.3d 819, 835 (Tex. App.—Austin 2007, no pet.).
A.B. argues that by not allowing her a prompt and meaningful ability to challenge the
Department’s removal of her children, her parental rights have been terminated solely on past
conduct. However, as noted above, we have already determined that A.B.’s complaints about the
adversary hearing and the temporary order resulting from that hearing are moot and not subject to
review on appeal. See In re A.K., 487 S.W.3d at 683; L.F., 2012 WL 1564547, at *14. It is well
established, moreover, that when a prior decree of termination as to another child is properly
admitted into evidence, the Department need not reestablish that the parent’s conduct with respect
to that child was in violation of Section 161.001(b)(1)(D) or (E). In re J.M.M, 80 S.W.3d 232,
243 (Tex. App.—Fort Worth 2002, pet. denied), disapproved on other grounds, In re J.F.C, 96
S.W.3d 256, 267 & n.39 (Tex. 2002). The Department need only show that the parent’s rights
were terminated as to another child based on findings that the parent violated subsections (D) and
(E). See id.; TEX. FAM. CODE ANN. § 161.001(b)(1)(M).
As a matter of law, A.B.’s parental rights to her fourth child were terminated based on
findings in the termination decree that she violated Section 161.001(b)(1)(D) and (E) of the Texas
Family Code. Therefore, we hold that the evidence is legally and factually sufficient to support
termination of A.B.’s parental rights to B.M. and J.M.1 under Section 161.001(b)(1)(M).
Accordingly, we overrule that portion of A.B.’s second issue.3
3
Because we conclude that the evidence is legally and factually sufficient to support termination of A.B.’s
parental rights under subsection (b)(1)(M), we need not address A.B.’s first and third issues regarding subsections
(b)(1)(D), (b)(1)(E), or (b)(1)(O). See TEX. FAM. CODE ANN § 161.001(b)(1); TEX. R. APP. P. 47.1. A.B. does not
dispute the trial court’s finding that termination was in the best interest of the children. See TEX. FAM. CODE ANN.
§ 161.001(b)(2).
5
TERMINATION OF FATHER’S PARENTAL RIGHTS
In his first, second, and third issues, J.M. argues the evidence is legally and factually
insufficient to terminate his parental rights pursuant to subsections (D), (E), and (O) of Texas
Family Code Section 161.001(b)(1). A finding of only one ground for termination alleged under
Section 161.001(b)(1) is sufficient to support a judgment of termination. In re E.M.N., 221
S.W.3d 815, 821 (Tex. App.–Fort Worth 2007, no pet.). Thus, to be successful on appeal, J.M.
must establish that the jury’s findings on all the Department’s pleaded grounds are unsupported by
the evidence. See Fletcher v. Dep’t of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex. App.–
Houston [1st Dist.] 2009, no pet.). When a parent does not challenge an independent ground that
may support an order of termination, and the jury found that termination was in the child’s best
interest, we cannot address any of the grounds for termination. See In re A.V., 113 S.W.3d 355,
362-63 (Tex. 2003); Fletcher, 277 S.W.3d at 64. Instead, we must overrule the challenges the
parent has chosen to assert. See In re A.V., 113 S.W.3d at 362-63; Fletcher, 277 S.W.3d at 64.
J.M. contends in his statement of issues that the evidence does not support termination of
his parental rights under subsections (1)(D) (endangerment by conditions or surroundings), (1)(E)
(endangerment by conduct), or (1)(O) (failure to comply with a court-ordered service plan), of
Texas Family Code Section 161.001(b)(1). However, in the body of his brief, J.M. fails to
challenge the jury’s findings on the grounds for termination alleged under subsection (1)(E)
(endangerment by conduct). Instead, his entire argument regarding the “[d]anger to the [c]hild”
only includes an argument regarding subsection (1)(D) (endangerment by conditions or
surroundings). Specifically, he states that there was “no evidence in the record that the parents
placed or allowed the children to remain in danger with their babysitter or with anyone else
period.” His brief does not contain any argument or discussion of subsection (1)(E) (endangerment
by conduct). Because J.M. does not challenge every ground upon which the jury could have based
its decision to terminate his parental rights, we do not address the unchallenged findings or the
grounds he chose to challenge in his brief. See In re A.V., 113 S.W.3d at 362-63; Fletcher, 277
S.W.3d at 64. Accordingly, we overrule J.M.’s first, second, and third issues.4
J.M. does not dispute the trial court’s finding that termination was in the best interest of the children. See
4
TEX. FAM. CODE ANN. § 161.001(b)(2).
6
DISPOSITION
Having overruled A.B.’s second issue, and J.M.’s first, second, and third issues, we affirm
the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 3, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
7
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 3, 2018
NO. 12-18-00094-CV
IN THE INTEREST OF B.M., AND J.M., CHILDREN
Appeal from the County Court at Law No. 2
of Henderson County, Texas (Tr.Ct.No. FAM17-0411-CC2)
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.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.