in the Interest of M.E.-M.N, Minor Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00358-CV
IN THE INTEREST OF M.E.-M.N,
MINOR CHILD
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. Introduction
Appellant S.G. appeals the judgment terminating her parental rights to
M.E.-M.N. She contends in four issues that the trial court abused its discretion
by finding her appeal frivolous, that she was denied effective assistance of
counsel during the post-trial period, and that the evidence is legally insufficient to
support the trial court‘s endangerment findings. We affirm.
II. Factual Background
On May 9, 2008, the Texas Department of Family and Protective Services
(the Department) received a referral alleging neglectful supervision of two-year-
old M.E.-M.N. The referral alleged that, while M.E.-M.N. was present, Appellant
had passed out in a car at a methadone clinic where Appellant had been
receiving treatment to overcome her addiction to opiates. Department
investigator Stephanie Kolb subsequently visited Appellant‘s residence and
knocked on the door, but no one answered. Kolb then heard what seemed like a
small child telling her to come inside, but no one answered after Kolb knocked
again. Kolb called for law enforcement, fearing that the child might be in the
home unattended, and law enforcement entered the home. Inside, Kolb found
M.E.-M.N., Appellant, and Appellant‘s friend Danny Lee.
Kolb interviewed Appellant and learned that she had a history of
prescription drug abuse and that Appellant no longer had custody of her two
oldest children. After conducting further investigation—including positive drug
test results for both Appellant and M.E.-M.N.—and unsuccessfully attempting to
find suitable, short-term housing for M.E.-M.N., Kolb recommended on May 19,
2008, that M.E.-M.N. be placed into foster care.
III. Procedural Background
The Department initiated this termination proceeding against Appellant and
C.N., M.E.-M.N.‘s biological father, on May 20, 2008.1 Although Appellant initially
had retained counsel, her retained attorney withdrew in February 2009. The trial
court then found Appellant indigent and appointed new trial counsel.
1
C.N. has not appealed the termination of his parental rights to M.E.-M.N.
2
After the September 2009 bench trial, the trial court terminated Appellant‘s
parental rights to M.E.-M.N., finding that Appellant had knowingly placed or
knowingly allowed M.E.-M.N. to remain in conditions or surroundings which
endangered M.E.-M.N.‘s physical or emotional well-being and engaged in
conduct or knowingly placed M.E.-M.N. with persons who engaged in conduct
which endangered the physical or emotional well-being of M.E.-M.N. and that
termination of Appellant‘s parental rights was in M.E.-M.N.‘s best interest.2 On
September 28, 2009, before the trial court signed the final order of termination,
Appellant‘s trial counsel filed a notice of appeal on Appellant‘s behalf. Also on
September 28, 2009, Appellant‘s trial counsel filed, and the trial court granted, an
―Agreed Motion to Withdraw as Counsel.‖3 The trial court did not, however,
appoint appellate counsel for Appellant, despite her indigence. The trial court
signed the final order of termination on October 6, 2009, but Appellant did not file
a motion for new trial or a statement of points for appeal.
After Appellant failed to timely file her appellate brief, we abated the appeal
and remanded the case to the trial court so that the trial court (1) could determine
whether Appellant was indigent and desired to continue the appeal, (2) could
appoint appellate counsel for Appellant, and (3) could permit Appellant to
develop an evidentiary record as to whether she was denied effective assistance
2
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (Vernon Supp. 2010).
3
The ―agreed order‖ permitting withdrawal of Appellant‘s trial counsel was
signed by Appellant‘s trial counsel and the Department‘s attorney, but it was not
signed by Appellant.
3
of counsel during the thirty-day period following the final order of termination.
See In re K.K., 180 S.W.3d 681, 687–88 (Tex. App.—Waco 2005, order) (abating
appeal for determination of whether parent was denied effective assistance of
counsel on appeal by failing to file brief), disp. on merits, No. 10-04-00303-CV,
2006 WL 561820 (Tex. App.—Waco Mar. 8, 2006, no pet.); In re S.D.S., No. 07-
04-00261-CV, 2004 WL 1879649, at *1 (Tex. App.—Amarillo Aug. 23, 2004,
order) (same), disp. on merits, 2005 WL 1038817 (Tex. App.—Amarillo May 3,
2005, pet. denied).
On remand, the trial court found that Appellant was indigent and wanted to
prosecute the appeal, and the trial court appointed appellate counsel for
Appellant. Appellant‘s new counsel then filed an ―emergency motion to comply
with abatement order,‖ and the trial court conducted a hearing on May 6, 2010.
After the May 6 hearing, the trial court found that Appellant was not represented
by counsel during the thirty-day period following entry of the final order of
termination, that no points of appeal were filed by Appellant‘s trial counsel, and
that Appellant‘s appeal would be frivolous. See Tex. Fam. Code Ann. §
263.405(d)(3) (Vernon 2008).
On June 2, 2010, Appellant filed her appellate brief and a ―motion to
extend time to file the brief and/or allow for supplementation of the brief.‖ We
granted Appellant‘s motion and stated that ―it is clear from the record and the
findings of the trial court that Appellant was not represented by counsel during
the post-judgment time for filing a statement of points and motion for new trial.‖
We also ordered (1) that the court reporter prepare and file a complete reporter‘s
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record without cost to Appellant, (2) that Appellant file a supplemental brief within
twenty days of the filing of the reporter‘s record, and (3) that we would ―treat
Appellant‘s complaints raised in her brief as a sufficient statement of points on
appeal.‖ Appellant then timely filed her supplemental brief.
IV. Discussion
Appellant contends in four issues that the trial court abused its discretion
by finding that her appeal would be frivolous,4 that she was denied effective
assistance of counsel in the post-trial period, and that the evidence is legally
insufficient to support the trial court‘s endangerment findings.5
A. Trial Court’s Frivolousness Finding
In the second issue of her initial brief and in the first issue of her
supplemental brief, Appellant contends that the trial court abused its discretion by
finding that her appeal would be frivolous. See Tex. Fam. Code Ann. §
263.405(d)(3). The trial court signed the final order of termination on October 6,
2009, but did not sign the order containing the frivolousness finding until May 6,
2010, well beyond the thirty-day deadline in section 263.405(d). See id. §
263.405(d). Although we abated this appeal on April 8, 2010, and remanded it to
the trial court, we remanded only for limited reasons and ordered that this appeal
would be ―automatically reinstated without further order‖ upon ―our receipt of the
4
Appellant‘s two briefs contain four total issues, but the second issue in her
initial brief and the first issue in her supplemental brief each challenge the trial
court‘s finding that her appeal would be frivolous.
5
Appellant does not challenge the trial court‘s finding that termination of her
parental rights is in M.E.-M.N.‘s best interest.
5
supplemental record.‖ The supplemental record was filed with this court on May
5, 2010. Thus, the trial court lost its abatement jurisdiction on May 5, 2010, but
signed the frivolousness order the following day. See generally Lewis v. State,
711 S.W.2d 41, 43 (Tex. Crim. App. 1986) (holding trial court exceeded its
authority by conducting evidentiary hearing outside scope of abatement
mandate). The Department suggests, and we agree and hold that the trial court
did not have jurisdiction on May 6, 2010, to render the frivolousness order and
that the frivolousness order is void. Therefore, we need not decide whether the
trial court abused its discretion by finding Appellant‘s appeal frivolous, and we
overrule the second issue of Appellant‘s initial brief and the first issue of
Appellant‘s supplemental brief. See Tex. R. App. P. 47.1.
B. Ineffective Assistance of Counsel
In the first issue of her initial brief, Appellant contends that she was illegally
denied effective assistance of counsel during the post-trial period because the
trial court permitted her appointed trial counsel to withdraw but did not timely
appoint appellate counsel.
Indigent persons in government-initiated parental-rights termination cases
have a statutory right to counsel, and that right includes the right to effective
assistance of counsel. In re M.S., 115 S.W.3d 534, 543 (Tex. 2003). To
successfully assert an ineffective assistance of counsel claim on appeal in a
termination case, the appellant must show (1) that counsel failed to perform in a
reasonably effective manner and (2) that ―the deficient performance prejudiced
the defense, which ‗requires showing that counsel‘s errors were so serious as to
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deprive the defendant of a fair trial, a trial whose result is reliable.‘‖ In re H.R.M.,
209 S.W.3d 105, 111 (Tex. 2006) (quoting M.S., 115 S.W.3d at 545); see
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
Family code section 263.405(b) provides that an appellant in a parental
termination proceeding must, within fifteen days of the final termination order, file
a motion for new trial or a statement of points for appeal if an appeal is sought.
See Tex. Fam. Code Ann. § 263.405(b). Further, family code section 263.405(i)
prohibits an appellate court from considering ―any issue that was not specifically
presented to the trial court in a timely filed statement of points . . . or in a
statement [of points] combined with a motion for new trial.‖ Id. § 263.405(i); see
In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010) (―The court of appeals may not
address an issue that is not included in a timely filed statement of points.‖).
It is undisputed that Appellant was indigent but unrepresented by counsel
during the fifteen-day period following entry of the final order of termination.
However, the trial court did eventually appoint appellate counsel for Appellant.
Moreover, we granted Appellant‘s motion on appeal for supplemental briefing
and ordered that we would treat the complaints in her appellate brief as a
sufficient statement of points for appeal. Thus, although Appellant was denied
appointed counsel during the fifteen-day period following the final order of
termination, Appellant has had the opportunity, with the assistance of appointed
appellate counsel, to fully present and brief any issues she wished to pursue on
appeal. Although the trial court should have promptly appointed appellate
counsel for Appellant when it permitted her trial counsel to withdraw, Appellant
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has not established that she was prejudiced by the trial court‘s failure to timely
appoint appellate counsel. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)
(holding appellant ―failed to demonstrate that her counsel‘s performance
prejudiced her defense‖). We therefore overrule the first issue in Appellant‘s
initial brief.
C. Legal Sufficiency of the Evidence
In the second issue of her supplemental brief, Appellant contends that the
evidence is legally insufficient to support the trial court‘s endangerment findings
―because the only evidence of child endangerment are conclusory statements by
two ongoing case workers.‖6
1. Standard 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
6
Appellant‘s supplemental brief sets forth the standards for reviewing the
legal and factual sufficiency of the evidence, but she states her second issue as
challenging only the legal sufficiency of the evidence, her argument section does
not contain argument concerning the factual sufficiency of the evidence, and she
seeks only reversal and rendition. Thus, we do not address whether the
evidence is factually insufficient to support the trial court‘s endangerment
findings.
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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,
685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort Worth
2009, no pet.).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a). Evidence is clear and
convincing if it ―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.‖ 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 evaluating the evidence for legal sufficiency in parental termination
cases, we 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 at 573. We review all the evidence in the light
most favorable to the finding and judgment. Id. We resolve any disputed facts in
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favor of the finding if a reasonable factfinder could have done so. Id. We
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We consider undisputed evidence even if it is contrary to the finding. Id. That is,
we consider evidence favorable to termination if a reasonable factfinder could,
and we disregard contrary evidence unless a reasonable factfinder could not. Id.
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 appellate record, we defer to the
factfinder‘s determinations as long as they are not unreasonable. Id. at 573.
2. Applicable Law
Endangerment means to expose to loss or injury, to jeopardize. Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G., 121
S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re M.C., 917
S.W.2d 268, 269 (Tex. 1996). Under section 161.001(1)(E), the relevant inquiry
is whether evidence exists that the endangerment of the child‘s physical well-
being was the direct result of Appellant‘s 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 subsection (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
parent‘s conduct be directed at the child or that the child actually suffer injury.
Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the
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child‘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). Moreover, a parent‘s mental state may be considered
in determining whether a child is endangered if that mental state allows the
parent to engage in conduct that jeopardizes the physical or emotional well-being
of the child. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.]
2003, no pet.). To determine whether termination is necessary, courts may look
to parental conduct occurring both before and after the child‘s birth. In re D.M.,
58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).
3. Discussion
The evidence is legally sufficient to support the trial court‘s finding that
Appellant ―engaged in conduct or knowingly placed [M.E.-M.N.] with persons who
engaged in conduct which endangered [M.E.-M.N.‘s] physical or emotional well-
being.‖ See Tex. Fam. Code Ann. § 161.001(1)(E). The Department filed this
case after receiving a referral alleging that Appellant was found passed out in her
car at the methadone clinic while M.E.-M.N. was present. Appellant testified and
denied the incident, but she subsequently acknowledged that she was
withdrawing from hydrocodone when she went to the methadone clinic and
testified that she had pneumonia and suffered from an overdose of a mixture of
antibiotic and methadone. Appellant further testified that she had been going to
the clinic for opiate addiction for five and one-half years, but she admitted that
she had not been there for more than a year before trial, had not received drug
treatment since that time, and had four positive drug tests during the pendency of
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the case. Appellant denied ever using cocaine or methamphetamines but could
not explain why she had tested positive for both (as well as other drugs) in April
and May 2008. In addition, both she and M.E.-M.N. tested positive for cocaine at
the beginning of the case in May 2008, which was the basis, she believed, for
M.E.-M.N. being taken by the Department. Further, the man with whom
Appellant and M.E.-M.N. lived at the beginning of the case also admitted having
a problem with cocaine.
Appellant acknowledged that she also struggled with an addiction to
Xanax; pleaded no contest in 1999 to felony prescription fraud; refused to take a
drug test in January 2009;7 and made numerous visits to a hospital emergency
room during the pendency of the case for relatively minor conditions, receiving
pain medication on most of those visits.8 After this case was filed, Appellant was
indicted for endangerment of her child (arising out of M.E.-M.N.‘s exposure to
cocaine), and she received deferred adjudication after pleading no contest.
Appellant subsequently had her bond revoked on the prescription fraud charge
and was jailed, during which time her services were abated, and she was unable
to schedule them until the middle of August prior to trial in September 2009.
Appellant testified that, although she had neither sought nor received
treatment for her addictions while this case was pending, she and her probation
7
The trial court may infer from a refusal to take a drug test that Appellant
was using drugs. See J.T.G., 121 S.W.3d at 131.
8
Appellant denied seeking pain medication from healthcare providers when
she was unable to get a ―fix‖ on the street.
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officer were working on placing her in outpatient treatment. Further, Appellant
admitted that she did not appear for her psychological examination, did not
attend parenting classes, did not attend counseling, and did not complete her
drug and alcohol assessment. The only evidence of employment was
Appellant‘s testimony that she was employed part-time as a caretaker of an
elderly woman, but she admitted that her caretaker‘s license had expired. She
also conceded that she does not have stable housing. In general, Appellant
conceded in her own testimony that she had ―not done nearly enough‖ to show
the court that she could provide a safe environment for her child. She said she
had followed the advice of her previous attorney in the beginning and had not
started working her services because her prior attorney wanted them done as he
requested them.
Finally, Appellant‘s mother testified that she had successfully petitioned for
termination of Appellant‘s parental rights to her two oldest children because of
Appellant‘s addiction to painkillers.9 Except for calls from Appellant on the older
children‘s birthdays, Appellant‘s mother has no contact with Appellant or M.E.-
9
Appellant initially agreed to give her mother custody of Appellant‘s two
oldest children. Appellant lived in her mother‘s home for a while and attended
outpatient treatment, but she did not obey the facility‘s rules. Appellant‘s mother
testified that she subsequently petitioned the court for termination of Appellant‘s
parental rights after having custody of the children for five years because she
believed that Appellant was not going to get treatment for her addiction and that
the children needed permanency. In that case, Appellant had counsel and fought
the termination of her rights, but she did not follow the requirements of getting
treatment, establishing a residence, or maintaining employment.
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M.N., and Appellant‘s mother does not know where Appellant lives, who her
friends are, or where she works.
Stability and permanence are paramount in the upbringing of children.
See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied).
Drug use and its effect on a parent‘s ability to parent may establish an
endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009);
R.W., 129 S.W.3d at 739; Dupree v. Tex. Dep’t of Protective & Regulatory
Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ). Further, ―[a]
parent‘s decision to engage in illegal drug use during the pendency of a
termination suit, when the parent is at risk of losing a child, supports a finding
that the parent engaged in conduct that endangered the child‘s physical or
emotional well-being.‖ In re J.A.G., No. 02-10-00002-CV, 2010 WL 4539442, at
*1 (Tex. App.—Fort Worth Nov. 10, 2010, no pet.) (mem. op.) (quoting In re J.W.,
No. 02-08-00211-CV, 2009 WL 806865, at *4 (Tex. App.—Fort Worth Mar. 26,
2009, no pet.) (mem. op.)). Even assuming, as Appellant contends, that the
caseworkers‘ testimonies were conclusory, there was ample additional evidence
in the form of Appellant‘s own testimony and that of her mother that supports the
trial court‘s endangerment finding.
Viewing all the evidence in the light most favorable to the termination
judgment, and disregarding all contrary evidence that a reasonable fact finder
could disregard, we hold that the evidence is legally sufficient to support a fact
finder‘s firm conviction or belief that Appellant engaged in conduct that
endangered M.E.-M.N.‘s physical or emotional well-being. See Tex. Fam. Code
14
Ann. § 161.001(1)(E); J.P.B., 180 S.W.3d at 573; In re S.G.S., 130 S.W.3d 223,
238 (Tex. App.—Beaumont 2004, no pet.). Because the evidence is legally
sufficient to support the trial court‘s section 161.001(1)(E) finding, we need not
address whether the evidence is also legally sufficient to support the trial court‘s
section 161.001(1)(D) finding. See In re E.M.N., 221 S.W.3d 815, 821 (Tex.
App.—Fort Worth 2007, no pet.) (stating that a finding of only one ground alleged
under section 161.001(1) is sufficient to support a judgment of termination). We
overrule the second issue in Appellant‘s supplemental brief.
V. Conclusion
Having held that the trial court did not have jurisdiction on May 6, 2010, to
find Appellant‘s appeal frivolous, and having overruled Appellant‘s remaining
issues, we affirm the trial court‘s order terminating Appellant‘s parental rights to
M.E.-M.N.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: May 26, 2011
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