In the INTEREST OF D.M., a Child

452 S.W.3d 462, 2014 Tex. App. LEXIS 12671, 2014 WL 6676966
Court of Appeals of Texas·Decided November 24, 2014·No. 04-14-00399-CV·Published·Cited by 220 cases

Opinions

OPINION

Opinion by:

Karen Angelini, Justice

Emma1 appeals the trial court’s order terminating her parental rights to her son, D.M. In three issues, Emma contends the evidence was legally and factually insufficient to support the trial court’s statutory endangerment and best interest findings. Because we conclude the evidence was legally and factually sufficient to support the trial court’s findings, we affirm.

The Testimony at Trial

Sheila Mueller, a San Antonio Police Officer, testified that on September 29, 2012, she and another police officer, Officer Sandoval, were dispatched to an apartment for an assault in progress. Two days earlier Officer Mueller had responded to a similar call at the same apartment. Upon arriving at the apartment, the officers saw a small child looking out of a broken window on the second floor. The child was screaming. Fearing the child would fall from the window, the officers hurried to the apartment door. The doorframe had been kicked in. The officers later learned that the apartment’s residents had been evicted and no one was supposed to be in the apartment.

Officer Mueller banged on the apartment door and a man answered. The man said he had been sleeping and fleas had been biting him. He said he did not know where the apartment’s residents were. The officers went inside the apartment and saw that it was filthy and disgusting, with trash everywhere. Broken glass was all over the floor. Below the window were syringes. The officers spotted the child, who now had a piece of broken glass in his hand and was playing with it. The child had cuts on his hands and feet from the glass. There was no food in the apartment other than moldy bread. The child appeared to be hungry. The child was wearing shorts and a t-shirt, but was without shoes or a diaper or underwear.

The man who answered the door was not the child’s father, and he was in a hurry to leave. The man told the officers the child was D.M. The officers were able to determine that the mother of the child was Emma. They were also able to identify the father. It appeared to Officer Mueller that the man who answered the door had used drugs or illegal substances, and she was concerned about him being in the apartment with D.M. The officers called Child Protective Services (“CPS”).

About an hour and a half later, Emma showed up at the apartment. Emma told the officers she had been assaulted by D.M.’s father and she had gone to the Drury Inn. Officer Sandoval took D.M. to [466]*466the children’s shelter, and Emma was arrested for child endangerment. Officer Mueller learned that Emma was on bond for “[c]ontrolled substance, penalty grade 1.”

Officer Mueller further testified that she called CPS because of the condition of the apartment, because D.M. was playing with glass shards, and because nobody was taking care of him. Officer Mueller determined D.M.’s birthday was October 13, 2010, so he was less than two years old at the time. She also learned that the child’s father had a recent arrest and conviction for felony assault. Officer Mueller believed that D.M. was left in conditions with surroundings that endangered him. And, further, D.M. was directly harmed by this environment because of his cuts.

Nadia Henry, a CPS investigator, testified she first became involved in this case in September 2012. Henry went to the apartment shortly after the officers found D.M. When Henry arrived, she saw that D.M.’s face was dirty, he was not wearing a diaper or underwear, he had scratches on his arms, and he had small red marks on his legs that looked like insect bites. Clothing, animal feces, and broken glass littered the floor. The apartment was infested with fleas. The conditions were unsanitary and hazardous to D.M. Henry learned that Emma, D.M.’s father, and D.M. had been living in the apartment, even though they had been evicted.

Henry spoke with Emma at the magistrate’s office shortly after D.M.’s removal. Emma admitted she had left the apartment earlier that day, leaving D.M. there with a man named Thomas. Emma told Henry about her child protective services history with her two older children in California. Emma did not tell Henry about previous CPS investigations involving D.M., both of which involved reports that D.M. had been left alone in a stroller outside of Emma’s apartment. The previous cases, involving D.M. had been investigated by CPS and closed. Emma also told Henry that she had not used drugs in five years. However, Henry further testified that, after this case was filed, Emma underwent court-ordered drug testing and tested positive for methamphetamines and amphetamines.

Henry understood that Thomas, the man in the apartment with D.M. on the day of his removal, was a family friend. Henry had seen Thomas at an earlier court hearing in this case. Henry stated that she had concerns about Thomas, who had a drug history. Henry believed Emma had knowingly placed or allowed D.M. to remain in conditions that would endanger his physical dr emotional well-being and had engaged in conduct or knowingly placed D.M. with persons who engaged in conduct that endangered his physical or emotional well-being. Henry also believed Emma had used a controlled substance in a manner that endangered D.M.’s health and safety.

John Cottle, a CPS caseworker, testified that D.M. was placed with a foster family following his removal. By the time of trial, D.M. had been living with this foster family for almost a year and a half, which was about half of his life. Cottle acknowledged that Emma had completed her service plan and graduated from criminal drug court. Cottle pointed out, however, that Emma had been incarcerated for part of the time this case was pending. And, Cottle expressed concern that Emma could not maintain her sobriety without the oversight provided by the drug court and probation. Cottle noted that people with a long history of drug abuse have a great chance of relapse, and that this was a very real concern in this case. Emma also had a long history with child protective services, both in California and Texas. For [467]*467these reasons, Cottle believed it was in D.M.’s best interest to terminate Emma’s parental rights.

Cottle also testified that D.M. was malnourished and speech-delayed when he was removed from Emma’s care. However, while in the care of his foster family, D.M. showed significant improvements both physically and socially. D.M. no longer had a speech delay and communicated in English and in Spanish. Cottle had observed the interactions between D.M. and the foster family and believed that D.M. had bonded with his foster family. Cottle stated that D.M.’s foster family would like to adopt him.

Patrick Vargas, a clinical director at Elite Counseling, testified that he was Emma’s drug counselor. Vargas had experience with individuals with drug addictions. Vargas acknowledged that a recovering addict lives a life of recovery. According to Vargas, Emma has been successful, graduating from felony drug court. Vargas further stated that Emma has followed through with all requested of her and has been able to maintain a residence and employment. Vargas felt confident that Emma would be able to sustain her success.

Three witnesses testified on behalf of D.M.’s foster parents. According to this testimony, when D.M. first came to live with his foster parents in October 2012, he had a cut on his foot, scratches on his arms, and was very thin. D.M. was reserved and quiet and fearful of men. D.M.

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In the INTEREST OF D.M., a Child, 452 S.W.3d 462, 2014 Tex. App. LEXIS 12671, 2014 WL 6676966 (Tex. Ct. App. 2014).

452 S.W.3d 462 (In the INTEREST OF D.M., a Child) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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