in the Interest of J. H., V, a Child

• Court: Court of Appeals of Texas
• Decided: January 12, 2017
• Docket: 13-16-00511-CV
• Status: Published

Opinion

NUMBER 13-16-00511-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF J.H., V, A CHILD

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Contreras, and Longoria Memorandum Opinion by Justice Contreras 1

Appellant J.H. IV appeals the termination of his parental rights to his biological son,

J.H. V, a child.2 By a single issue, appellant argues that the evidence was legally and

factually insufficient to support findings under parts (D) and (E) of subsection

1Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et seq. (West, Westlaw through 2015 R.S.).

2 We refer to appellant and the child by their initials in accordance with the rules of appellate procedure. See TEX. R. APP. P. 9.8(b)(2) (providing that, in an appeal arising out of a case in which the termination of parental rights was at issue, “the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor’s identity, to the minor’s parent or other family member”). 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),

(E) (West, Westlaw through 2015 R.S.). We affirm.

I. BACKGROUND

J.H. V was born on July 31, 2015 to J.M., his mother, and appellant, his father. On

August 31, 2015, the Department of Family Protective Services (the “Department”) filed

a petition to terminate appellant’s parental rights, alleging that: (1) appellant knowingly

placed or knowingly allowed J.H. V to remain in conditions or surroundings which

endanger the child’s physical or emotional well-being; (2) appellant engaged in conduct

or knowingly placed J.H. V with persons who engaged in conduct which endangered the

child’s physical or emotional well-being; and (3) termination was in J.H. V’s best interests.

See id. § 161.001(b)(1)(D), (b)(1)(E), (b)(2). On August 3, 2016, the Department filed an

amended petition alleging that appellant had committed these and several other acts and

omissions referenced in subsection 161.001(b)(1). See id. § 161.001(b)(1)(A)–(K), (M)–

(Q).

At a bench trial on August 23, 2016, George Butcher, a deputy United States

Marshal, testified that he was assigned to assist locating and apprehending appellant,

who was wanted in Houston on a state charge of aggravated assault with a deadly

weapon, family violence. See id. § 71.004 (West, Westlaw through 2015 R.S.) (defining

“family violence”). Butcher was advised of the location of appellant’s residence in

Portland, Texas, and of a car that appellant was driving. He observed the car at the

residence on the morning of August 27, 2015. According to Butcher, appellant and J.M.

exited the residence while “engaged in a verbal argument.” Butcher testified that, “[w]ithin

a couple of minutes at most I observed and my partner observed [appellant] pull out what

2 appeared to be a knife, and he had raised it above his head as in what we thought he

may be trying to assault or stab her.” Butcher then advised local police to execute the

warrant for appellant’s arrest. He testified that he saw “several” young children at the

residence later that day. Butcher learned later that the object wielded by appellant was

not a knife, but rather a screwdriver.

Police officer Rachelle Farmer testified that J.M. recounted that appellant had

“placed her in a choke hold and strangled her” that morning. According to Farmer, J.M.

said that she and appellant had been arguing because “he was not supposed to be at the

residence with the children” due to a “prior domestic violence incident” involving appellant

assaulting her, which resulted in J.H. V being removed from their custody. Farmer

observed abrasions on J.M.’s neck, which J.M. said were the result of the prior incident.

J.M. told Farmer that appellant had threatened to contact Child Protective Services

(“CPS”) and have her children removed if she did not relinquish her rights to J.H. V.

Farmer stated that, on the day of the arrest, J.H. V had already been removed and was

not at the residence.

Robin Castle, another police officer, testified that she was assigned to investigate

a family violence case on April 25, 2015. At that time, J.M. had a scrape near her eye

and a large bruise on her shoulder. J.M. told Castle that appellant had hit her with his

fists and choked her and that, a few days earlier, appellant had hit or kicked her in the

stomach area, which she believed caused her to suffer a miscarriage. Appellant was

arrested.

Eva Yanira Perez, a CPS investigator, testified that she was assigned to the case

on August 19, 2015, after there were reports that appellant had physically abused E.C.,

3 one of five children living with appellant and J.M. at the time.3 Perez agreed that the

allegations of abuse were “substantiated” by medical staff reports which showed “injuries”

and “non-accidental trauma.”4 She stated that a safety plan was put in place advising

both parents “that there was to be no contact with [appellant] with the children in the

home.”

On August 27, 2015, Perez was advised that appellant and J.M. had engaged in a

verbal and physical altercation, and that two children were “inside the home the whole

time.” At the time, J.M. V was staying with his paternal aunt. Perez advised appellant

and J.M. that “they had not adhered to the safety plan.” The two remaining children were

removed from the home, and J.M. V was removed from the custody of his paternal aunt.

Perez testified: “There was a lot of domestic violence, and we were concerned for the

safety of the children being that the aunt, who was supposed to be caring for the children,

had not been there, had left the children alone with [J.M.], and [appellant] had been in the

home.” J.H. V was placed with a different paternal aunt.

Perez agreed with the attorney ad litem that she had stated in an affidavit that J.M.

was hospitalized in May 2015, while she was pregnant with J.H. V, after appellant “beat

her up” and “r[a]n her over with his truck.”

Michelle Mckenna, a caseworker for the Department, testified that appellant signed

a Family Service Plan on January 20, 2016. At the time, appellant had just been released

from being incarcerated on an assault-family violence charge in Galveston County, and

he “went back to jail” on January 31, 2016, due to another altercation with J.M., for which

3 Perez stated that appellant is J.H. V’s father but is not the father of the other four children. 4 She agreed with the attorney ad litem that E.C. suffers from a speech impairment, and that, when

E.C. “made her outcry,” she said the words “[appellant’s first name] pow pow.”

4 charges were eventually dropped. Mckenna stated that there is an “extreme pattern of

domestic violence” between appellant and J.M. According to Mckenna, appellant did not

comply with the Family Service Plan’s requirements that he attend anger management

and parenting classes or that he provide safe, stable, and appropriate housing for the

child; he has not provided proof of employment; and he has had inconsistent visits with

J.H. V. Mckenna agreed that appellant has knowingly placed or allowed J.H. V to remain

in conditions or surroundings that would endanger his physical or emotional well-being,

and she agreed that it would be in the child’s best interests for appellant’s parental rights

to be terminated.

Appellant testified that he failed to comply with various aspects of the Family

Service Plan, but that was because he lives in Houston and was waiting for Mckenna to

set up his services there. He said he has been arrested three times since the case started

about one year prior to trial, that he has been incarcerated for about half that time, and

that he has been convicted only once. He denied ever physically abusing J.M. and he

specifically denied threatening J.M. with a screwdriver on August 27, 2015. He stated

that, in May 2015, J.M. fell out of a truck he was driving when she reached over to get a

cell phone and he drove over a tree stump.

In closing, counsel for the Department asked the trial court to terminate appellant’s

parental rights based on appellant’s “failure to complete any of the items of his Family

Service Plan . . . other than the visitation . . . and coupled with the continuous domestic

violence.” Appellant’s counsel noted that appellant made an effort to have services

transferred to Houston, but that the transfer was not done. Counsel asked the trial court

to “take into consideration the lateness [of] the amendment” of the Department’s petition,

5 noting that “they had only specified a couple of grounds until . . . very recently” and

arguing that “that’s a way for the [D]epartment to unjustly come into court today and say

that [appellant] didn’t do a lot of the things that they are alleging that he didn’t do when

he wasn’t provided the notice.”

The trial court rendered judgment terminating appellant’s parental rights, finding

by clear and convincing evidence that appellant had, as alleged in the Department’s

original petition, committed acts under parts (D) and (E) of family code subsection

161.001(b)(1), and that termination of the parent-child relationship is in J.H. V’s best

interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (b)(1)(E), (c).5 This appeal

followed.

II. DISCUSSION

A. Standard of Review and Applicable Law

Involuntary termination of parental rights involves fundamental constitutional rights

and divests the parent and child of all legal rights, privileges, duties and powers normally

existing between them, except for the child’s right to inherit from the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—

Corpus Christi 2010, no pet.). “Termination of parental rights, the total and irrevocable

dissolution of the parent-child relationship, constitutes the ‘death penalty’ of civil cases.”

In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly,

termination proceedings must be strictly scrutinized. Id. at 112. In such cases, due

process requires application of the “clear and convincing” standard of proof. Id. (citing

5 The trial court’s order also terminated the parental rights of J.M., who had previously voluntarily

relinquished her parental rights. J.M. is not a party to this appeal.

6 Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re J.F.C., 96 S.W.3d 256, 263 (Tex.

2002)). This intermediate standard falls between the preponderance of the evidence

standard of civil proceedings and the reasonable doubt standard of criminal proceedings.

In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined

as 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, Westlaw through 2015 R.S.).

The court may order termination of the parent-child relationship if the court finds

by clear and convincing evidence that: (1) the parent committed an act or omission

described in family code subsection 161.001(b)(1); and (2) termination is in the best

interest of the child. Id. § 161.001(b); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

In reviewing the legal sufficiency of evidence supporting termination, we “look at

all the evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was

true.” In re J.L., 163 S.W.3d at 85; In re L.J.N., 329 S.W.3d at 671. We must assume

that the fact finder resolved disputed facts in favor of its finding if it was reasonable to do

so. In re L.J.N., 329 S.W.3d at 671. We must also consider undisputed evidence, if any,

that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C., 96

S.W.3d at 266 (“Disregarding undisputed facts that do not support the finding could skew

the analysis of whether there is clear and convincing evidence.”).

When reviewing the factual sufficiency of the evidence supporting termination, we

determine “whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction about the truth of the [Department]’s allegations.” In re C.H., 89

7 S.W.3d 17, 25 (Tex. 2002). In conducting this review, we consider whether the disputed

evidence is such that a reasonable finder of fact could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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, then the evidence is factually insufficient.” Id.

B. Analysis

Appellant contends on appeal that there was no evidence that he ever neglected,

abused, or endangered J.H. V, and that the only evidence regarding his relationship with

the child was appellant’s own testimony. He argues that the only evidence supporting the

two grounds for termination under subsection 161.001(b)(1) was of acts that allegedly

took place outside the presence of child.6

Under part (E), the evidence must have been sufficient to allow the trial court to

have formed a firm belief or conviction that appellant engaged in conduct or knowingly

placed J.H. V with persons who engaged in conduct which endangered J.H. V’s physical

or emotional well-being. TEX. FAM. CODE ANN. § 161.001(b)(1)(E). “Endanger” 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). The term means “more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal family environment,” but “it is not necessary that

the conduct be directed at the child or that the child actually suffers injury.” Id. The

parent’s conduct before and after the child is born is relevant. In re R.F., 115 S.W.3d

6 Appellant’s brief does not contain any references to the trial record. See TEX. R. APP. P. 38.1(i).

However, we choose in our sole discretion to accept the brief and consider the arguments made therein.

8 804, 810 (Tex. App.—Dallas 2003, no pet.). Danger to a child need not be established

as an independent proposition and may be inferred from parental misconduct. Walker v.

Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied). The relevant inquiry is whether evidence exists that a

parental course of conduct endangered the child’s physical or emotional well-being. Id.

Here, evidence showed that appellant repeatedly engaged in acts of domestic

violence, both before and after the birth of J.H. V. Castle testified that, on April 25, 2015,

J.M. reported that appellant hit her and choked her. Perez, the CPS investigator, agreed

that she had stated in an affidavit that appellant “beat [J.M.] up” and “r[a]n her over with

his truck” in May 2015 while she was pregnant with J.H. V. Perez further testified that

there were substantiated reports that appellant had physically abused one of J.M.’s other

children, E.C., who specifically mentioned appellant’s first name in her outcry. Butcher

testified that he observed appellant threaten to stab J.M. on August 27, 2015 with what

was later shown to be a screwdriver. This occurred while there were several young

children in the house. Farmer stated that J.M. had abrasions on her neck and that J.M.

reported that appellant had strangled her that day. Mckenna, the Department

caseworker, testified that appellant was released from jail on a family violence charge on

January 20, 2016, and that he returned to jail eleven days later as a result of another

domestic altercation.

Though appellant denied physically abusing J.M., he conceded that he has been

arrested three times since the case started. He also stated that he had been imprisoned

for six out of the twelve months prior to trial. Mere imprisonment will not, standing alone,

constitute engaging in conduct that endangers the physical or emotional well-being of a

9 child. See Boyd, 727 S.W.2d at 533. However, when all of the evidence, including

imprisonment, shows a course of conduct that has the effect of endangering the physical

or emotional well-being of the child, a finding of endangerment under part (E) is

supportable. Id. at 534. If the imprisonment of the parent displays a voluntary, deliberate,

and conscious course of conduct, it qualifies as conduct that endangers the child. Walker,

312 S.W.3d at 616–17. The evidence here established exactly that. As Mckenna noted,

the record reveals an “extreme pattern of domestic violence” between appellant and J.M.

which continued after J.H. V was born and after the service plan was instituted. This

evidence was legally and factually sufficient to support the trial court’s finding by clear

and convincing evidence, under part (E) of subsection 161.001(b)(1), that appellant

engaged in conduct which endangered J.H. V’s physical or emotional well-being. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

Because we find sufficient evidence to support a finding under part (E) of

subsection 161.001(b)(1), we need not address whether the evidence was sufficient to

support a finding under part (D) of that statute. See In re A.V., 113 S.W.3d 355, 362 (Tex.

2003) (“Only one predicate finding under section 161.001(1) is necessary to support a

judgment of termination when there is also a finding that termination is in the child’s best

interest.”); see also TEX. R. APP. P. 47.1.7 We overrule appellant’s issue on appeal.

7 On appeal, appellant does not dispute that the evidence was sufficient to support the trial court’s finding that termination of his parental rights is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2).

10 III. CONCLUSION

The trial court’s judgment is affirmed.

DORI CONTRERAS Justice

Delivered and filed the 12th day of January 2017.