M. S. v. Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: November 22, 2024
• Docket: 03-24-00466-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00466-CV

M. S., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 274TH DISTRICT COURT OF HAYS COUNTY NO. 24-0506, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING

M E M O RAN D U M O PI N I O N

M.S. (“Father”) appeals from the trial court’s order terminating his parental rights

to his children Ana, Joshua, and Carlos following a bench trial. 1 Father challenges the legal and

factual sufficiency of the evidence to support the trial court’s statutory-predicate findings

supporting termination under Texas Family Code § 161.001(b)(1)(D) and (E). For the following

reasons, we affirm the trial court’s order of termination.

BACKGROUND

Father and Mother were married and shared three children: Ana, born in 2009,

Joshua, born in 2011, and Carlos, born in 2018. On February 23, 2024, the City of Kyle police

department responded to a welfare check at the family’s home after Father called his brother to say

he had hit Mother with a bat and, referring to his family, “they are all dead.” Officers found Mother

1 We refer to appellant as Father and his children by aliases. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. We refer to the children’s mother, who is deceased, as Mother. in bed unresponsive with traumatic head injuries, and she died at the hospital from her injuries

later that day. The children were uninjured. After Father was incarcerated, the Department

removed the children from his custody and placed them with their maternal aunt.

On February 26, the Department filed an original petition seeking termination of

Father’s parental rights to the children. In addition to outlining the circumstances described above,

the affidavit in support of the children’s emergency removal stated that Father “had admitted to

beating the mother which caused her death and had planned on killing the entire family but was

not ‘strong enough.’” The affidavit also referenced a validated allegation of sexual abuse against

Father made by a cousin in March 2022. Based on Mother’s death and Father’s incarceration, the

Department also sought a no-contact order between the children and Father.

The Department moved for a finding of aggravated circumstances based on the

circumstances of the children’s removal—namely that Father had expressed his intent to kill the

children and was charged with Mother’s murder, which he allegedly carried out with the children

present. See Tex. Fam. Code § 262.2015(a), (b). It requested that the trial court waive the service

plan requirement and relieve the Department from its duty to make reasonable efforts to return the

children to Father. Id. § 262.2015(a). It also sought an accelerated trial. Id. The trial court granted

the motion, finding that Father had subjected the children to aggravating circumstances under

Texas Family Code sections 262.2015(b)(3)(H) (injury to a child, elderly individual, or disabled

individual) and 262.2015(b)(3)(I) (abandoning or endangering a child, elderly individual, or

disabled individual). Father sought mandamus relief from that order from this Court, which

we denied. In re M.S., No. 03-24-00206-CV, 2024 WL 1662033, at *1 (Tex. App.—Austin

Apr. 18, 2024, orig. proceeding) (mem. op.).

2 The parties waived their right to a jury trial, and the trial proceeded before the bench

on June 21. Four witnesses testified: Officer Mark Hamilton, a City of Kyle police officer who

responded to the welfare check; Frank Roe, the children’s CPS caseworker; Clark Beach, the court

appointed special advocate (CASA) guardian ad litem for Joshua and Carlos; and Rose Tempfer,

the CASA guardian ad litem for Ana. Father attended trial virtually but did not testify. 2

Officer Hamilton testified that he was one of the police officers who responded to

a “welfare concern regarding a female possibly being hurt or injured or killed by . . . a male” and

that “possibly there were some children in danger.” After finding Father detained in the patrol

unit, Office Hamilton reported he observed Father had “a small laceration over one of his eyes,”

had blood on his clothing and hands, and was “highly emotional.”

Officer Hamilton testified that he transported Father to the hospital for medical

clearance, then to the Hays County law enforcement center, where Father made several statements

to him. Specifically, Father relayed he did not live in the house but had been visiting his wife and

children that evening. Officer Hamilton stated Father “went on to describe an assault on his wife,

including a club-like object, in which he went into great detail describing which hand he used,

approximately how many times he struck her, and various details along those lines.” When asked

if Father admitted any intention to kill his wife, Officer Hamilton responded, “I believe he stated

multiple times whether she lived or died made no difference to him.” And when asked if Father

discussed his intent to kill anyone else, Officer Hamilton stated that Father “made some statements

that, basically, if he and his wife were unable to care for the children, that he didn’t want them

going any other places. And he made some statements about possibly killing the children.” Officer

2 The parties agreed to Father’s virtual participation, and Father’s counsel expressly waived any issue regarding his virtual attendance. 3 Hamilton also reported that to his knowledge, “the youngest child was in bed with the mom” during

the assault. Officer Hamilton described Father’s demeanor while he made these statements as

“relatively calm” and noted that Father had expressed “concern[s] for [the children’s] well-being.”

Mr. Roe testified he has been the caseworker on this case since the children first

came into the Department’s custody. He stated he is familiar with the children because he visits

them at least once a month to offer services, noting that the children are in therapy, which has been

helping them. Mr. Roe opined that “at least the two oldest children are coping the best way they

can,” “still show a little anger towards their father” and “having confusion about what’s

happening” but “are getting help with their therapist” and “are very strong and holding up.” In

discussing Carlos, Mr. Roe stated “he is still very young and doesn’t know all what’s happening

right now,” noting that he has been having “behavioral issues . . . because of this whole situation.”

Mr. Roe observed that “the family is very attentive,” but the children “still need long-term help.”

He agreed that the children “know fully well that their father murdered their mother,” and it was

in the children’s best interest to have no communication with Father.

Mr. Roe described the children as placed “in a loving environment” with their

maternal aunt, where they regularly see their maternal grandmother and other maternal relatives.

He reported the Department’s permanency plan for the children is relative adoption by their

maternal aunt, attested that this was in the children’s best interest, and noted that the children want

to be adopted by their maternal aunt, who also wants to adopt the children.

Mr. Beach, the CASA guardian ad litem for Joshua and Carlos, testified that he

visits with the boys once a month. He reported that the boys indicated they would like to stay with

their aunt and agreed that termination of Father’s parental rights is in their best interest, noting that

Father “is currently incarcerated and won’t be able to care for the children, and their mother is

4 deceased.” Likewise, Mr. Beach opined it would be in the children’s best interest for Father’s

parental rights to be terminated so they could “be adopted by their placement,” where all their

needs are being met.

Ms. Tempfer, the CASA guardian ad litem for Ana, testified that she visits with Ana

once a month. She noted that Ana is “a very bright student” with no education issues but “will

continue to need trauma therapy for a while.” Regarding Ana’s placement with her aunt,

Ms. Tempfer attested Ana is “comfortable, at ease where she is” and “would like to stay there,”

which she agreed was in Ana’s best interest. Ms. Tempfer stated she felt termination of Father’s

parental rights was in Ana’s best interest because he “is incarcerated,” he “has a pending sexual

assault case,” and she did not believe “he is in a position to take care of [the children].” She also

agreed one of her concerns is that Father is “charged with the murder of their mother” and attested

Ana told her “she does not want any contact with her father.”

After closing statements by Father, the Department, and the children’s guardian ad

litem, the trial court found that clear and convincing evidence supported termination of Father’s

parental rights under section 161.001(b)(1)(D) and (E) and that termination is in the best interest

of the children.

On July 3, the trial court signed an order terminating Father’s parental rights to the

children under Texas Family Code sections 161.001(b)(1)(D) and (E). The trial court also found

by clear and convincing evidence that termination of the parent-child relationship between Father

and the children is in the children’s best interest under section 161.001(b)(2), and it appointed the

Department as the children’s managing conservator. See Tex. Fam. Code § 161.207(a).

Father appeals.

5 ANALYSIS

Father challenges the legal and factual sufficiency of the evidence supporting the

trial court’s findings of statutory grounds for termination under subsections (D) and (E). As to

subsection (D)—that Father knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endangered the children’s physical or emotional well-being—

Father contends the only testimony that supports that statutory finding is Officer Hamilton’s

“improperly admitted testimony” regarding Father’s statements. As to subsection (E)—that Father

engaged in conduct or knowingly placed the children with persons who engaged in conduct which

endangered the children’s physical or emotional well-being—Father maintains he did not

demonstrate a course of conduct that supports a finding under that statutory ground. 3

“To terminate parental rights, the factfinder must find by clear and convincing

evidence that (1) at least one of the termination grounds set forth in Section 161.001(b)(1) or other

sections of the Texas Family Code applies, and (2) termination is in the best interest of the child.”

In re C.E., 687 S.W.3d 304, 308 (Tex. 2024). “Clear and convincing evidence ‘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. (quoting Tex. Fam. Code § 101.007). This “higher standard of proof” is required

“[b]ecause the termination of parental rights implicates fundamental interests.” In re A.B.,

437 S.W.3d 498, 502 (Tex. 2014).

An appellate court conducting a legal sufficiency review considers all evidence in

the light most favorable to the trial court’s finding, as well as any undisputed contrary evidence,

to determine whether a reasonable factfinder could have formed a firm belief or conviction that it

3 Father does not challenge the trial court’s best-interest finding. 6 was true. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). “Courts ‘must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so,’ but courts

‘should disregard all evidence that a reasonable factfinder could have disbelieved or found to have

been incredible.’” In re C.E., 687 S.W.3d at 308 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002)). In a factual sufficiency review, the appellate court considers and weighs disputed evidence

contrary to the trial court’s findings against the evidence in favor of the finding. In re A.C.,

560 S.W.3d at 631. “Evidence is factually insufficient if, in light of the entire record, the disputed

evidence a reasonable factfinder could not have credited in favor of a finding is so significant that

the factfinder could not have formed a firm belief or conviction that the finding was true.” Id.

However, appellate courts “provide due deference to the decisions of the factfinder who, having

full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the

credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d at 503.

Subsections (D) and (E) both require proof of endangerment. In re S.B.,

597 S.W.3d 571, 583 (Tex. App.—Amarillo 2020, pet. denied). A parent’s endangering conduct

under subsection (D) and (E) “need not ‘be directed at the child or that the child actually suffers

injury.’” In re R.R.A., 687 S.W.3d 269, 227 (Tex. 2024) (quoting Texas Dep’t of Human Servs.

v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). “Instead, endangerment encompasses a larger array

of conduct that exposes a child to loss or injury or jeopardizes the child.” Id. (cleaned up). “A

factfinder may infer endangerment from ‘a course of conduct’ that presents substantial risks to the

child’s physical or emotional well-being—the focus on grounds (D) and (E).” Id. These risks “can

be developed by circumstances arising from and surrounding a parent’s behavior”; however, they

“must be more than ‘a threat of metaphysical injury or the possible ill effects of a less-than-ideal

family environment.’” Id. (quoting Boyd, 727 S.W.2d at 533).

7 Subsection (D) focuses on “the child’s surroundings and environment rather than

parental misconduct, which is the subject of subsection (E).” In re S.B., 597 S.W.3d at 583 (citing

Doyle v. Texas Dep’t of Protective & Regul. Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000,

pet. denied)). “The factfinder may infer from past conduct endangering the child’s well-being that

similar conduct will recur if the child is returned to the parent.” Id. Subsection (E) focuses on the

parent’s conduct evidenced by his actions or failure to act. Id. (citing In re M.J.M.L., 31 S.W.3d 347,

350–51 (Tex. App.—San Antonio 2000, pet. denied)). Though the conduct does not need to be

directed at the child, termination under subsection (E) requires more than a single act or omission.

Id. at 583–84. “Evidence as to how a parent has treated another child or spouse is relevant

regarding whether a course of conduct under section 161.001(1)(E) has been established.” Walker

v. Texas Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]

2009, pet. denied).

Father contends “the only inculpatory evidence” against him on subsection (D)

grounds were his own statements that he maintains were improperly introduced. Specifically,

Father argues the trial court erred by overruling his objection that Officer Hamilton’s testimony

regarding Father’s statements was not the best evidence under Texas Rule of Evidence 1002,

because, he argues, the “best evidence” would have been the audio or video recording of his

statements to Officer Hamilton. 4 Father also maintains the trial court erred by overruling his

objection to a purportedly speculative answer by Mr. Roe in response to whether the two older

children “actually ‘knew’ the incident occurred”—i.e., whether Mr. Roe agreed the children knew

4 At trial, Father’s counsel acknowledged he had not requested those recordings through discovery. Father’s counsel also urged these statements should be omitted based on the rule of optional completeness. See Tex. R. Evid. 107. However, Father does not maintain this argument on appeal. 8 “that their father murdered their mother.” Finally, Father asserts that the trial court “repeatedly

admitted hearsay testimony” over his objections, pointing to several points in the record in which

witnesses testified to the children’s desires to be adopted by their maternal aunt.

“Evidentiary rulings are committed to the trial court’s sound discretion.” Bay Area

Healthcare Grp. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam). “Even if a trial court

errs by improperly admitting evidence, reversal is warranted only if the error probably caused the

rendition of an improper judgment.” Id. (citing Tex. R. App. P. 61.1(a)). An appellant seeking

reversal on purportedly improperly admitted evidence must demonstrate, in light of the entire

record, “that the judgment turns on the particular evidence admitted.” Id.

The best-evidence rule provides “[a]n original writing, recording, or photograph is

required in order to prove its content unless these rules or other law provides otherwise.” Tex. R.

Evid. 1002. However, the best-evidence rule is inapplicable here because the Department did not

seek to prove the contents of a recording. Id.; see Chennault v. Chennault, No. 12-17-00295-CV,

2018 WL 992115, at *3 (Tex. App.—Tyler Feb. 21, 2018, no pet.) (mem. op.) (finding that

best-evidence rule was inapplicable when affidavit referred to findings in prior case but did not

attempt to prove contents). Officer Hamilton’s testimony was instead elicited to establish what

Father told him about Mother’s assault and the circumstances of the children’s removal. Thus,

Father’s argument that the trial court abused its discretion by permitting Officer Hamilton’s

testimony despite his best-evidence rule objection is inapposite. Cf. Ritcherson v. State,

476 S.W.3d 111, 132 n.10 (Tex. App.—Austin 2015), aff’d, 568 S.W.3d 667 (Tex. Crim. App.

2018) (noting that Rule 1002 does not require admission of video recording when participant

to recorded conversation is called to testify) (citing Matute v. State, No. 03-13-00601-CR,

9 2014 WL 6845585, at *3–5 (Tex. App.—Austin Nov. 26, 2014, pet ref’d) (mem. op., not

designated for publication)).

As to the remaining evidentiary objections, Father has not demonstrated how the

trial court’s decision to permit witnesses’ testimony regarding the children’s desire to be adopted

by their maternal aunt and Mr. Roe’s testimony regarding the children’s understanding of Mother’s

death was harmful error. That is, Father has not established that, considering the entire record—

including Officer Hamilton’s testimony about Father’s statements—“the judgment turns on the

particular evidence admitted” regarding the children’s desires or whether the children understood

the cause of Mother’s death. McShane, 239 S.W.3d at 234. In sum, Father has not established that

any of the trial court’s evidentiary rulings were an abuse of discretion or harmful error.

Given the evidence here, a reasonable factfinder could have formed a firm belief or

conviction that Father subjected the children to endangerment under subsection (D) and (E).

Officer Hamilton’s testimony established Father’s description of his violent attack on Mother with

all three children in the home, including the youngest child in bed with Mother during the attack. 5

“Domestic violence, want of self-control, and propensity for violence may be considered as

evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.]

2003, no pet.); see also In re L.D.C., 622 S.W.3d 63, 71 (Tex. App.—El Paso 2020, no pet.)

(“[C]onduct that subjects a child to the probability of abandonment ‘because a parent is jailed

endangers both the physical and emotional well-being of the child.’” (quoting Walker, 312 S.W.3d

at 617)). To the extent that termination under subsection (E) requires an ongoing course of conduct

5 Unlike other parental-rights termination cases involving similar circumstances, Father has not yet been convicted of a crime in connection with Mother’s death. Cf. In re E.M.N., 221 S.W.3d 815, 824 (Tex. App.—Fort Worth 2007, no pet.). 10 extending beyond Father’s cumulative actions the day of Mother’s assault, the testimony regarding

evidence of Father’s pending sexual assault case was sufficient to establish it. See D.N. v. Texas

Dep’t of Family & Protective Servs., No. 03-15-00658-CV, 2016 WL 1407808, at *2 (Tex. App.—

Austin Apr. 8, 2016, no pet.) (mem. op.) (“A parent’s criminal activity or incarceration can also

constitute endangerment under subsection (E), especially if the parent engages in criminal activity

while knowing that his or her parental rights are in jeopardy.”); In re S.B., 207 S.W.3d 877, 885

(Tex. App.—Fort Worth 2006, no pet.) (affirming termination under subsection (E) based on

officer’s testimony that Father killed Mother while children were in the same home and evidence

that Father used drugs and had abused Mother “on more than one occasion”); but see In re E.M.N.,

221 S.W.3d 815, 824 (Tex. App.—Fort Worth 2007, no pet.) (“[U]nder subsection (E), . . . murder

of one parent by the other has long been considered a ground for termination.” (collecting cases)).

We overrule Father’s arguments that the trial court lacked clear and convincing

evidence to support termination under statutory-predicate grounds (D) and (E).

CONCLUSION

For the above reasons, we affirm the trial court’s order of termination.

__________________________________________ Rosa Lopez Theofanis, Justice

Before Justices Baker, Smith, and Theofanis Concurring Opinion by Justice Baker

Affirmed

Filed: November 22, 2024