COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-05-392-CV

IN THE INTEREST OF M.R.J.M., A CHILD

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FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY

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OPINION ON REHEARING

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I. Introduction

The trial court terminated the parental rights of Appellant Michael M. to

his child M.R.J.M. The trial court denied Michael’s motion for new trial after

a hearing under family code section 263.405 and signed an order finding that

any appeals from the termination would be frivolous. See Tex. Fam. Code

Ann. § 263.405(d) (Vernon 2008). Michael appealed from that finding and

from the trial court’s judgment terminating his parental rights. In an earlier

order, we held that the trial court abused its discretion when it found Michael’s
1... Mother pleaded guilty to two felony counts of injury to a child after

hospital authorities discovered that her eight-month-old twins had skull

fractures, black eyes, and other serious injuries. Her other two children,

including M.R.J.M., suffered from serious cases of head lice. Mother blamed

her then-boyfriend for abusing her children and testified that she never saw

anything.

2

appeal frivolous, and we ultimately ordered a complete record of the

proceedings below. After reviewing the record and all briefs filed, we affirm the

judgment terminating his parental rights.

II. Factual and Procedural Background

M.R.J.M. was born in September 1999; she was six years old at the

October 2005 trial. M.R.J.M.’s mother (“Mother”) was sixteen when she met

and moved in with Michael, then age thirty-three. Mother left Michael while

M.R.J.M. was still a baby, but Michael always knew where to find them.

Mother abused drugs: marijuana and cocaine when she was with

Michael; mostly methamphetamine and marijuana by the time M.R.J.M. and

Mother’s other children were removed by Child Protective Services (“CPS”) in

2004.1 The father of Mother’s other three children executed a voluntary

affidavit of relinquishment of his parental rights before trial. Mother executed

a voluntary affidavit of relinquishment of her parental rights to all four children

before closing arguments.
3

The jury charge indicated that to terminate Michael’s parental rights to

M.R.J.M., the jury had to find by clear and convincing evidence that “at least

one of the following” had occurred: that Michael knowingly placed or knowingly

allowed M.R.J.M. to remain in conditions or surroundings that endangered her

physical or emotional well-being; that he engaged in conduct or knowingly

placed M.R.J.M. with persons who engaged in conduct that endangered her

physical or emotional well-being; or that he constructively abandoned M.R.J.M.

See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N) (Vernon 2008). The jury

charge also required that, to terminate Michael’s parental rights, the jury had

to find by clear and convincing evidence that termination of the parent-child

relationship would be in M.R.J.M.’s best interest, and the jury charge listed

factors that the jury could consider. See id. § 161.001(2).

The application question stated, “Should the parent-child relationship

between [Michael] and the child, [M.R.J.M.] be terminated?” The jury

responded, “Yes.” The trial court ordered termination of Michael’s parental

rights in accordance with the jury’s verdict.
2... Michael’s statement of points contains the following: that the

evidence was factually insufficient to support the jury’s findings on the grounds

for termination under section 161.001(1)(D), (E), (N), and (2); that the trial

court misinformed the venire and commented on the weight of the evidence

during voir dire; that the trial court erroneously submitted the charge in broad

form; that section 263.405(i) violates the Separation of Powers Doctrine; and

that, to the extent section 263.405 requires a showing that an appeal would

not be frivolous before the appeal may proceed, it violates the Due Process

Clause of the United States Constitution.

3... Michael argued on rehearing that his appeal could not be frivolous

because, during the pendency of his appeal, this court decided that section

263.405(i) was void as violating separation of powers. See In re D.W., 249

4

Michael filed a motion for new trial, setting out his statement of points

for appeal.2 The trial court denied Michael’s motion for new trial, found him

indigent, and found his appeal frivolous. Michael appealed.

In our initial review of Michael’s appeal, we ordered a record “of all of the

evidence admitted [at trial].” See In re M.R.J.M. (M.R.J.M. I), 193 S.W.3d

670, 674 (Tex. App.—Fort Worth 2006, order) (en banc). On March 28, 2008,

we issued an opinion affirming the trial court’s frivolousness finding, and

Michael filed a motion for rehearing. Subsequently, we withdrew the March 28

opinion. We issued an order on September 9, 2008, granting Michael’s motion

for rehearing and ordering Michael to file a brief on the merits regarding those

issues not already addressed in his statement of points because we agreed that

Michael’s issue challenging the constitutionality of section 263.405(i) was not

frivolous.3 In our order, we concluded that Michael’s appeal presented a
S.W.3d 625, 640 (Tex. App.—Fort Worth) (holding that section 263.405(i) is

unconstitutional because it unduly interferes with the appellate court’s

substantive power to rehear and determine issues on the merits that were

decided in the court below), pet. denied, 260 S.W.3d 462 (Tex. 2008). And

he argued that his appeal could not be frivolous because this court granted an

en banc hearing in M.R.J.M. I. The State conceded on rehearing that these

points were not frivolous.

5

substantial question for appellate review, and we sustained Michael’s first

rehearing issue, holding that the trial court abused its discretion by finding

Michael’s appeal frivolous and restricting the appellate record to the section

263.405(d) hearing. We ordered that Michael was entitled to appeal from the

trial court’s termination order and that he was entitled to a complete record of

the underlying proceedings.

III. Discussion

A. Michael’s Complaints

Michael’s original brief contains the following four issues:

[Issue 1]: Does section 263.405(g) of the Texas Family Code

unconstitutionally interfere with this Court’s jurisdiction under

section 6(a) of article V of the Texas Constitution?

[Issue 2]: To the extent section 263.405 requires a showing that

an appeal would not be frivolous before the appeal may proceed,

does it violate the Due Process Clause of the United States

Constitution?

[Issue 3]: The trial court erred in finding the appeal frivolous

[complaining that section 263.405(i) violated the separation of

powers doctrine, the broad-form jury charge submission was
6

improper, the trial court made an improper comment during voir

dire, and the evidence was not factually sufficient to support

grounds (D), (E), and (N) and the best interest finding].

[Issue 4]: The trial court erred in instructing the court reporter not

to prepare a record of the trial and by ordering the court reporter

and the clerk to prepare records of the section 263.405(d) hearing

only.

Michael’s brief in support of his motion for rehearing contains the

following five issues:

[Rehearing Issue 1]: The trial court erred in finding the appeal

frivolous and, in turn, restricting the appellate record to the section

263.405(d) hearing, held on November 22, 2005.

[Rehearing Issue 2]: The evidence is factually insufficient to show

[Michael] knowingly placed or knowingly allowed [M.R.J.M.] to

remain in conditions or surroundings that endangered her emotional

or physical well-being.

[Rehearing Issue 3]: The evidence is factually insufficient to show

[Michael] engaged in conduct or knowingly placed M.R.J.M. with

persons who engaged in conduct that endangered her physical or

emotional well-being.

[Rehearing Issue 4]: The evidence is factually insufficient to show

[Michael] constructively abandoned the child who had been in the

permanent or temporary managing conservatorship of the

Department or an authorized agency for not less than six months

and (a) the Department or authorized agency had made reasonable

efforts to return the child to the father, (b) the father had not

regularly visited or maintained significant contact with the child,

and (c) the father had demonstrated an inability to provide the child

with a safe environment.

[Rehearing Issue 5]: The trial court erroneously submitted the

charge in broad form.
4... Michael argued that our review was curtailed because section

263.405(g) limited the contents of the appellate record to the frivolousness

hearing record only, and he argued that our opportunity to review was limited

by a lack of briefing on the merits. However, we determined in M.R.J.M. I that

an appellate court has the authority to order the preparation of a record of all

the evidence in a termination case when necessary to review a trial court’s

determination that an appeal raising a factual sufficiency complaint is frivolous.

193 S.W.3d at 674–76. And section 263.405(g) provides that the court, in

considering an appeal of the trial court’s frivolousness finding, may require the

parties to file appellate briefs on the issues presented, as we did here. See Tex.

7

Michael stated that after reviewing the October 1, 2008 supplemental

reporter’s record, he had no further issues that he wanted to raise. 

B. Mooted Issues

The mootness doctrine prevents courts from rendering advisory opinions,

which are outside the jurisdiction conferred by article II, section 1 of the Texas

Constitution. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822

(Tex. 2000). An issue may become moot when a party seeks a ruling on some

matter that, when rendered, would not have any practical legal effect on a

then-existing controversy. See In re H&R Block Fin. Advisors, Inc., 262 S.W.3d

896, 900 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding); City of

Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.—Dallas 2007, no

pet.).

Michael’s arguments under Issue 1 were effectively mooted by our

holding in M.R.J.M. I.

4

 193 S.W.3d at 674–76. And his arguments under
Fam. Code Ann. § 263.405(g); M.R.J.M. I, 193 S.W.3d at 674–76.

5... Our September 9 order acknowledged that Michael’s issue challenging

the constitutionality of section 263.405(i) was not frivolous and effectively

mooted Michael’s complaint about section 13.003(b) of the civil practice and

remedies code being used as the trial court’s standard for determining whether

his appeal was frivolous. See Tex. Fam. Code Ann. § 263.405(d)(3); Tex. Civ.

Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002).

6... In Issue 2, Michael argued that section 263.405’s required showing

that an appeal is not frivolous violates procedural due process because it

emphasizes the speed of judicial proceedings over accuracy and the best

interest of the child by unfairly requiring appellate counsel to identify appellate

issues and argue the merits of those issues without the benefit of a record.

See Tex. Fam. Code Ann. § 263.405(f) (appellate record not due until sixty

days after order); id. § 263.405(b) (statement of points due within fifteen days

after order); id. § 263.405(i) (appellate court cannot consider any issues not

presented in the statement of points). In Issue 3, he complained that section

263.405(i), the statement of points requirement, violated the Separation of

Powers Doctrine. However, while a parent’s right to retain custody of his

children is a constitutionally protected liberty interest that must be afforded

procedural due process, see In re G.C., 66 S.W.3d 517, 524–25 (Tex.

App.—Fort Worth 2002, no pet.), Michael was not harmed here by the

statutory deadlines because we have since held that the trial court abused its

discretion by finding his appeal frivolous, ordered the entire trial record to be

produced for him, and held that an appellant is not limited to raising on appeal

only those issues contained in the statement of points. See D.W., 249 S.W.3d

at 640; see also M.R.J.M. I, 193 S.W.3d at 674–76 (holding that appellate

court can order the preparation of a reporter’s record of the termination trial).

8

Issue 4 and part of Rehearing Issue 1 were also mooted by our order in

M.R.J.M. I, as well as by our September 9 order.5 See id. at 676. Issue 2 and

part of Issue 3 were also mooted: Issue 2 by our September 9 order, and Issue

3 by our holding in D.W.

6

 249 S.W.3d at 640. We now address the following
9

overlapping issues: the remainder of Issue 3 and Rehearing Issues 2, 3, 4, and

5.

C. Trial Court’s Comment

In Issue 3, Michael complains that “the trial court told the venirepersons

that the case involved injured children that the parent had allegedly abused.”

Because his daughter, M.R.J.M., had not been injured and there were no

allegations that Michael had harmed her or any other child, he asserts that this

comment was prejudicial and improper.

To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do

this, error is not preserved, and the complaint is forfeited. Bushell v. Dean, 803

S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). The following conversation

occurred during voir dire:

[State’s attorney]: . . . But we’ve got four children, ranges two to

six, and we need every one of you that gets chosen to listen to the

evidence and decide does this parent’s rights need to be

terminated. And it’s not really about the parent, it’s about the

children. It’s always about the children.

[The Court]: I think that we’ve only had a little discussion about

verbal abuse. And I think it’s important for the panel to know that
7... Furthermore, a trial court has great discretion in the manner it

conducts a trial, and it possesses “the authority to express itself in exercising

this broad discretion.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41

(Tex. 2001). And the complaining party first must show that the comments

were improper and then show that the improper comments prejudiced him.

Metzger v. Sebek, 892 S.W.2d 20, 39 (Tex. App.—Houston [1st Dist.] 1994,

writ denied), cert. denied, 516 U.S. 868 (1995). Michael is unable to do that

on the record before us. The trial court’s comment was not inaccurate as this

case involved termination of parental rights to four children—M.R.J.M. and her

three younger half-siblings. Two of those half-siblings had been injured, and

Mother had pleaded guilty to charges of felony injury to a child; at this point in

the trial, she had not yet signed an affidavit of relinquishment of her parental

rights. Our review of the record reveals no testimony by any witness that

Michael had physically abused M.R.J.M., and the jury was instructed to

consider only the exhibits and evidence introduced under oath.

10

the facts that you will hear about this week are much more serious

than verbal abuse.

[State’s Attorney]: Your Honor—

[The Court]: And those of you that are taking into account the

difficulty, realize it’s not verbal.

Mother’s attorney then requested to approach the bench and a conversation

was held off the record. Because Michael failed to object, he did not preserve

this issue.7 See Tex. R. App. P. 33.1(a); Bushell, 803 S.W.2d at 712. We

overrule this portion of Issue 3.

D. Factual Sufficiency

In Issue 3 and Rehearing Issues 2, 3, and 4, Michael complains that the

evidence is factually insufficient to support the jury’s findings on endangerment
11

and constructive abandonment and its best interest finding. See Tex. Fam.

Code Ann. § 161.001(1)(D), (E), (N), (2). 

1. Standard of Review

A parent’s rights to his children are constitutional interests. See In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). But while parental rights are of

constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). “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 merely to preserve that

right.” Id. 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 M.C.T., 250

S.W.3d 161, 167 (Tex. App.—Fort Worth 2008, no pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subdivision (1) of the statute and must also prove that termination
12

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;

termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(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 2002). In reviewing the evidence for factual sufficiency,

we must give due deference to the factfinder’s findings and not supplant the

verdict with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We

must determine whether, on the entire record, a factfinder could reasonably

form a firm conviction or belief that the parent violated subsections (D), (E), or

(N) of section 161.001(1) and that the termination of the parent-child

relationship would be in the best interest of the child. C.H., 89 S.W.3d at 28.

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 in the
13

truth of its finding, then the evidence is factually insufficient. H.R.M., 209

S.W.3d at 108.

2. Endangerment

Endangerment is defined as exposing to loss or injury, to jeopardize. In

re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).

Under subsection (D), it is necessary to examine evidence related to the

environment of the child to determine if the environment was the source of

endangerment to the child’s physical or emotional well-being. In re D.T., 34

S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet. denied). A child is

endangered when the environment creates a potential for danger that the parent

is aware of but disregards. See In re S.M.L., 171 S.W.3d 472, 477 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). Inappropriate, abusive, or unlawful

conduct by persons who live in the child’s home or with whom the child is

compelled to associate on a regular basis in his home is a part of the

“conditions or surroundings” of the child’s home under section 161.001(1)(D).

Castorena v. Tex. Dep’t of Protective & Regulatory Servs., No.

03-02-00653-CV, 2004 WL 903906, at *8 (Tex. App.—Austin Apr. 29, 2004,

no pet.) (mem. op.); see also In re W.S., 899 S.W.2d 772, 776 (Tex.

App.—Fort Worth 1995, no writ) (stating that “environment” refers not only to
14

the acceptability of living conditions, but also to a parent’s conduct in the

home).

Under subsection (E), the relevant inquiry is whether evidence exists that

the endangerment of the child’s physical or emotional well-being was the direct

result of the parent’s conduct, including acts, omissions, and failures to act.

J.T.G., 121 S.W.3d at 125. Termination under subsection (E) must be based

on more than a single act or omission; a voluntary, deliberate, and conscious

course of conduct by the parent is required. Id.; D.T., 34 S.W.3d at 634.

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.). 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. See In re D.L.N., 958

S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved on other

grounds by J.F.C., 96 S.W.3d at 267 n.39, and C.H., 89 S.W.3d at 26. Drug

abuse during pregnancy constitutes conduct that endangers a child’s physical

and emotional well-being. See In re W.A.B., 979 S.W.2d 804, 806–07 (Tex.

App.—Houston [14th Dist.] 1998, pet. denied) (upholding termination where

mother used illegal drugs during and after pregnancy), disapproved of on other

grounds, J.F.C., 96 S.W.3d at 267 n.39; Dupree v. Tex. Dep’t of Protective &
15

Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ).

Conduct that subjects a child to a life of uncertainty and instability also

endangers the child’s physical and emotional well-being. See In re S.D., 980

S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) (using illegal

drugs and violating parole provided sufficient evidence of endangerment). While

imprisonment alone is not a basis to terminate a parent’s rights, it is an

appropriate factor to consider because when a parent is incarcerated, he or she

is absent from the child’s daily life and unable to provide support to the child,

negatively impacting the child’s living environment and emotional well-being.

See S.M.L., 171 S.W.3d at 478–79. To support a finding of endangerment,

the parent’s conduct does not necessarily have to be directed at the child, nor

is the child required to suffer injury. Boyd, 727 S.W.2d at 533.

Because the evidence pertaining to subsections 161.001(1)(D) and (E) is

interrelated, we may conduct a consolidated review. M.C.T., 250 S.W.3d at

169; see also In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007,

no pet.) (holding that there was legally and factually sufficient evidence of both

endangerment grounds when, among other things, the evidence showed that

parent exposed children to domestic violence and refused to participate in CPS

service plan).
16

With regard to subsections (D) and (E), Michael complains that while

there was evidence that he knew Mother used marijuana and other drugs at one

time, there was also evidence that he was unaware that she was still using

marijuana, that he had no knowledge that Mother had resumed using the other

drugs, and that he was not aware that Mother was physically or emotionally

abusing any of the children.

Michael also acknowledged, however, that Mother was a drug addict

when he met her, and he testified that he used drugs after M.R.J.M. was born.

Mother testified that she smoked marijuana while pregnant with M.R.J.M. and

that Michael was present when she did. Mother testified that she had never

done anything after breaking up with Michael to give him the impression that

she was no longer using drugs. Michael testified that after Mother had more

children, “I believe that if she was using drugs, the doctors would have tested

her and the kids [would] have been removed. They were not.”

Mother testified that Michael hit her only once, but that she was holding

M.R.J.M. at the time. Michael admitted that he hit Mother, but he claimed that

it was in self-defense and that Mother was not holding M.R.J.M. at the time.

Mother testified that she always initiated visits between M.R.J.M. and

Michael, even though Michael knew where to find them, and that she took

M.R.J.M. to visit him three or four times after they separated but that Michael
8... Michael’s sister testified that although Michael has back problems, he

is still capable of working. Michael testified, “Social Security does not tell me

I have to work. . . . Medicare would much rather my health be placed as a

priority than be placed in a position for where I have to work.”

17

never sought M.R.J.M. out and he never brought formula or diapers. Michael

agreed that he always knew where Mother lived. He claimed that he called

M.R.J.M., spoke with her “almost all the time,” and initiated phone contact

99% of the time and that he walked tremendous distances to visit M.R.J.M.,

bring her food, and make sure that she was safe. But he also testified that he

never went to Mother’s house to check on M.R.J.M.

Mother testified that Michael once told her that he would rather let his

family starve than to get out and do anything.8 Mother testified that Michael’s

sister called CPS in 1999 because she was concerned about M.R.J.M. not

being fed. Michael’s sister testified that she saw Mother and Michael feed

M.R.J.M. water instead of milk or formula when M.R.J.M. was an infant, that

the baby did not have any food, and that their house was dirty during that visit.

Mother testified that Michael’s priorities are “all about him and his

injuries.” Michael receives government disability payments for his back injuries.

Mother testified as follows with regard to Michael’s behavior when M.R.J.M.

was born:
18

Q. What did [Michael] tell you he felt about the day you were in

the hospital?

A. Well, prior to [M.R.J.M.] being born there was always

hospital visits. And the day she was born he’d actually made

a statement that he couldn’t believe I was being admitted

into the hospital when he wasn’t over his back injuries. And

[M.R.J.M.] was laying on the bed and the nurse was in there,

and he actually grabbed his chest. He kind of went over, but

he didn’t fall on her, and we moved her. Then he stayed in

the hospital bed the entire time, until he went home later that

night.

Q. In your hospital bed?

A. Yes, ma’am.

Q. Where were you?

A. On the chair with the baby and my family.

Michael’s contributions to M.R.J.M.’s financial welfare, other than $200

that he sent to her over a period of four years from her birth, began with a

deduction from his government disability payments when she was around four

years old. Mother testified that she had to pawn her stereo the day that

M.R.J.M. was born in order to pay the electric bill, and that when she was with

Michael, they frequently went without electricity or food. Both Michael and

Mother testified about his pack-a-day cigarette habit, and Michael testified that

he lost forty pounds in a year because he did not have sufficient money to buy

food.
9... Outside the jury’s presence, the trial court confirmed the open

warrant, and Michael was arrested.

19

Mother testified that she did not think that Michael could take care of

M.R.J.M., stating, 

He was old enough then to take care of us, to take care of her, and

he didn’t. And I don’t think that can change now. I don’t think

she’d be safe there; mentally, emotionally. I don’t think he is

responsible enough to take care of her. . . . I don’t know if the

heat’s going to be on. I don’t know if the electricity is going to be

on every time.

Additionally, at the time of trial, Michael was on felony probation for a 2001

forgery conviction, and he testified that he had known for over a year that there

was a warrant out for him because he had not reported in on that probation

since 2002—almost three years before trial.9 He testified that if he had had

M.R.J.M. with him and had been arrested, he did not believe that this would

have risked her safety and security.

Based on the foregoing and giving due deference to the jury’s findings,

the jury could have formed a firm belief or conviction that Michael knowingly

allowed M.R.J.M. to remain in an endangering environment with Mother by

ignoring Mother’s drug use and failing to check on M.R.J.M. and that he

engaged in endangering conduct by neglecting M.R.J.M. and his probation

responsibilities and by knowingly placing M.R.J.M. with Mother, a person who
10... For example, Mother testified that M.R.J.M. had seen her smoke

crack more than once.

20

engaged in endangering conduct.10 See Tex. Fam. Code Ann. § 161.001(1)(D),

(E); H.R.M., 209 S.W.3d at 108. Therefore, we overrule this portion of Issue

3 and Rehearing Issues 2 and 3.

3. Constructive Abandonment

A parent constructively abandons a child when (1) the child has been in

the permanent or temporary managing conservatorship of the State or an

authorized agency for not less than six months, (2) the State or the authorized

agency has made reasonable efforts to return the child to the parent, (3) the

parent has not regularly visited or maintained significant contact with the child,

and (4) the parent has demonstrated an inability to provide the child with a safe

environment. Tex. Fam. Code Ann. § 161.001(1)(N); In re A.S., 261 S.W.3d

76, 88–89 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Michael

contests the second, third, and fourth elements of the constructive

abandonment ground.

The State’s preparation and administration of a service plan for the parent

constitutes evidence that the State made reasonable efforts to return the child

to the parent. See, e.g., In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort

Worth 2002, no pet.); In re S.S., No. 11-05-00083-CV, 2006 WL 1285125,
11... The trial court took judicial notice of the fact that mileage between

Athens and Mabank is 18.5 miles. It took judicial notice of the fact that

mileage between Forney, where Michael was supposed to attend his MHMR

assessment, and Mabank is 36.3 miles, and not the 110 miles that Michael

complained of.

21

at *2–3 (Tex. App.—Eastland May 11, 2006, no pet.) (mem. op.). Michael’s

attorney stipulated that five service plans were prepared for Michael.

Furthermore, although Michael lived in Mabank, Texas, the State made special

arrangements for Michael to have parenting classes nearby, in Athens, Texas.11

And a CPS worker came out to Michael’s home and drove him to his

psychological assessment. Nonetheless, Michael failed to complete his service

plan: he failed to attend his drug, alcohol, and MHMR assessments, and he

neglected to complete the parenting classes.

Michael had only two visits with M.R.J.M. over a seventeen-and-a-half

month period, complaining that he lacked money and transportation to visit

more frequently. His second visit occurred eight days before trial. With regard

to his transportation problems, Michael testified that it cost him $112 to visit

M.R.J.M. and that he could not afford that on the amount of money he receives

for his disability. However, he also testified that he pays $67 per month for

cable and approximately $14 per week ($56 per month) to support his cigarette

habit. And the jury heard the following testimony from Michael at trial:
12... In a letter dated November 3, 2004, Michael’s CPS worker stated,

I cannot give [M.R.J.M.] this letter because it would not make

much sense to [her]. The letter talks about things that you are

questioning the state about and not focusing on [M.R.J.M.].

[M.R.J.M.] needs a letter that encourages her and talks about how

you are doing. You have in the past written very appropriate

letters and I am asking you to reflect on this and rewrite a letter to

[M.R.J.M.].

22

Q. The question was, [M.R.J.M.] has a right to expect that

someone who wants to parent her comes and visits with her

and makes a bond with her every month, at least. You

haven’t done that, have you?

. . . .

A. No.

Q. So you haven’t had consistent contact with her?

A. No.

Q. You haven’t maintained a significant contact with her, have

you?

A. No.

Q. And you haven’t visited regularly?

A. No.

Michael did write to M.R.J.M., but one of his three letters that was entered into

evidence was deemed inappropriate by CPS and not delivered.12
23

Michael testified that he and his brother lived together and that someone

from CPS had visited his trailer four or five months before trial, before he

started to restore the twenty-year-old trailer. He testified, “I risked my life to

restore my home,” referring to his physical disabilities, and he testified that he

invested all of his money in his trailer.

Although Michael testified that he spent $3,000 to restore the interior of

his trailer and to fix a room for M.R.J.M., he admitted that all of the electrical

sockets and plugs were not completely installed and that those might constitute

a hazard, he admitted that he was not finished with the restoration

yet—including M.R.J.M.’s bedroom and bathroom, and he stated that to finish

the restoration would take an additional two weeks.

Based on the foregoing and giving due deference to the jury’s findings,

the jury could have formed a firm belief or conviction that Michael

constructively abandoned M.R.J.M. by failing to regularly visit or maintain

significant contact with her, by demonstrating an inability to provide her with

a safe environment, and by failing to complete his service plan despite the

State’s reasonable efforts to return M.R.J.M. to him. See Tex. Fam. Code Ann.

§ 161.001(1)(N); H.R.M., 209 S.W.3d at 108. Therefore, we overrule this

portion of Issue 3 and Rehearing Issue 4.

4. Best Interest of the Child
24

There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt

and permanent placement of the child in a safe environment is also presumed

to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon

2002). The following factors, among others, should be considered in evaluating

the parent’s willingness and ability to provide the child with a safe environment:

the child’s age and physical and mental vulnerabilities; the willingness and

ability of the child’s family to seek out, accept, and complete counseling

services and to cooperate with and facilitate an appropriate agency’s close

supervision; the willingness and ability of the child’s family to effect positive

environmental and personal changes within a reasonable period of time; and

whether the child’s family demonstrates adequate parenting skills, including

providing the child with minimally adequate health and nutritional care, a safe

physical home environment, and an understanding of the child’s needs and

capabilities. Id. § 263.307(b); R.R., 209 S.W.3d at 116.

Other, nonexclusive factors that the trier of fact in a termination case

may use in determining the best interest of the child include: the desires of the

child; the emotional and physical needs of the child now and in the future; the

emotional and physical danger to the child now and in the future; the parental

abilities of the individuals seeking custody; the programs available to assist
13... McCarty testified that when M.R.J.M. first came to see her, M.R.J.M.

was having problems with sleepwalking and nightmares.

25

these individuals to promote the best interest of the child; the plans for the

child by these individuals or by the agency seeking custody; the stability of the

home or proposed placement; the acts or omissions of the parent which may

indicate that the existing parent-child relationship is not a proper one; and any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976). These factors are not exhaustive; some listed

factors may be inapplicable to some cases; other factors not on the list may

also be considered when appropriate. C.H., 89 S.W.3d at 27. Furthermore,

undisputed evidence of just one factor may be sufficient in a particular case to

support a finding that termination is in the best interest of the child. Id. On the

other hand, the presence of scant evidence relevant to each factor will not

support such a finding. Id.

M.R.J.M. receives counseling twice a month from a licensed counselor,

Heather Brogan McCarty, who specializes in abused or neglected children, and

she had been attending counseling for over a year by trial.13 One of Michael’s

two visits with M.R.J.M. occurred with McCarty there. McCarty testified that

Michael told her his goal for that visit was to see if M.R.J.M. wanted to live

with him and that he had brought M.R.J.M. some presents. She testified that
14... McCarty testified that one of the presents, a portable CD player and

two CD cases, one of which did not contain a CD, was not an age-appropriate

gift for M.R.J.M.

15... McCarty testified that Michael promised M.R.J.M. that if she came

to live with him, she would maintain contact with her siblings and that he

would enroll her not only in dance classes like her foster parents had, but that

he “would enroll her . . . in every dance class she wanted to take if she came

to live with him.” McCarty testified that she found that unlikely, based on

Michael’s financial and transportation issues.

16... McCarty testified, “I think that [to separate M.R.J.M. from her

siblings] would be very detrimental to her emotional well-being and her feeling

26

she informed Michael that “it was not okay for him to give [M.R.J.M.] the

presents prior to asking her where she wanted to live so that it didn’t seem like

a bribe.” However, Michael still gave M.R.J.M. the presents prior to talking

with her about where she wanted to live.14 McCarty also testified that Michael

made a lot of promises to M.R.J.M. that she thought were unlikely to occur.15

She testified that at the end of the session, M.R.J.M. told Michael that she

wanted to stay where she was.

McCarty also testified that M.R.J.M.’s foster parents had no unrealistic

expectations about M.R.J.M. and her siblings, that they had good parenting

skills, and that she had no concerns at all about M.R.J.M. or her siblings being

in the foster home. McCarty testified that her concerns about Michael were

that he would not be able to meet M.R.J.M.’s needs or follow through with the

promises that he had made to M.R.J.M., including her visits with her siblings.16
of safety and security.”

27

Michael admitted at trial that he had not looked into whether dance classes for

M.R.J.M. were available in his area.

With regard to M.R.J.M.’s siblings, Michael testified that he never

thought about what it might do to M.R.J.M. to take her from the foster home

and away from her brothers and sisters. He stated,

The decision in reference to splitting the children up, I am adamant

in stating that this is not a concern of mine in reference to the way

I should view it. Because I know that I can allow [M.R.J.M.] to

visit the other children. And that’s my contention is that being

[M.R.J.M.’s] dad, I—I shouldn’t have to be denied my right to be

a dad because there’s other children involved.

Michael’s sister testified that before trial, Michael called her and said, “I

understand [that] you’re going to be sitting—you’re going to be on the side of

the children.” She testified that she tried to explain to him why she felt it was

in M.R.J.M.’s best interest to stay with her siblings.

Furthermore, Mother, Michael’s sister, and Michael himself testified about

Michael’s conspiracy theories. Mother testified that Michael was paranoid and

saw conspiracies everywhere, and that “[w]hen you expressed to him that you

didn’t understand [his thoughts on conspiracy], that they w[ere] off the wall,

then you must be in on it too.” Michael testified that he felt that the reason the

State had custody of M.R.J.M. was that he was being extorted and that it was
17... Michael stated, “You want to judge me as an individual that’s trash

for which the State of Texas is supposed to protect. I’m disabled. Crimes

against the disabled, I should be protected of. I wouldn’t go to you, ma’am,

nor that Child Protective Services over there for any assistance because I

kn[e]w you wouldn’t help me.”

28

“oppression through the State of Texas for custody of my daughter,” and he

would not go to the State for assistance because it would not provide him with

assistance.17 He also testified about a girl who lived in Mabank that was the

same age as M.R.J.M., that he believed that the girl was M.R.J.M.’s twin, and

that he wanted a paternity test to prove it. He gave the following testimony

with regard to a July 2004 letter that he sent his CPS caseworker:

Q. Let’s look down at the bottom, towards the bottom of the

page, about three quarters of the way. “[Mother] is not an

honest individual and although I’m the parent of a child,”

quote, “‘[M.R.J.M.]?’ I have no regrets as the letter—as a

letter she wrote to me, which is included. [B]elieve her dad

is Ricky, a neighbor of mine. May be wrong. If you ever

have a chance to watch the movie, ‘Lamboda,’ Lou Diamond

Phillips, the scene at the end of the movie with a plane

wreck was in reference to me. Both Thomas and Ricky, I

believe, to be doctors.” Why is that important?

A. Because I’m going through a case pertaining to [M.R.J.M.],

and this isn’t a runaway jury type of case. This pertains to

my daughter. This doesn’t pertain to tobacco issues or the

lung issues that I might have going on in my health.

Q. Okay.

A. I know that she [apparently, Mother] does associate herself

with a tobacco company.
29

Q. Let’s look at the next page at the bottom, it’s the last

sentence, “I never married [Mother], nor am I dead. Yet the

Cowboys receive 400 million for a stadium referred to . . .

Enron article. I’ve been referred to as many people from . . .

Lenny, John, Ron plus more.” [W]hy was the Cowboys

stadium important in the cost?

A. Because the money in reference to that case right there, for

which I have mentioned to my attorney, I believe to be my

money.

Q. “Depends on the [S]tate. This isn’t Night of the Living Dead

to Kelly’s version or Carey in Oklahoma.” [W]hat did that

reference?

A. I’m living, okay. I mean, I live a simple life. Old Johnny in

Arlington isn’t dead. I mean—I mean, you got to understand,

people have another identity sometimes or an alias for which

you may not always know.

. . . .

Q. . . . I want to look at what kind of looks like the third

paragraph, it’s a little bit above the middle of the page.

“Either way, although I am concerned for the children, I’m

leaving the investigation to the,” quote, “‘fraudulent.’

Believe they refer to me and the injuries I have. Remember

Lisa is Bart’s sister.” Was that another attempt at humor?

A. Actually, Lisa Kudrow is a real good friend of mine. I will

clarify this right now. I do know a Lisa Kudrow, for which

she stars on “Friends.” I dated her in high school. So, yeah,

I refer to her a lot.

Q. . . . [I]n this letter when it says, “remember Lisa is Bart’s

sister,” you’re talking about Lisa Kudrow?

A. Yes. I want to clarify this right now.
30

Q. “You have a chance to review an article by a Lisa Steadfelt

the Third. Christopher is Bart and I have included a press

clipping in reference to Barbara and Chris. This infringes on

conspiracy and a possible attempt on my life. Also I have

given possible leads to theft involving Doug.” So you believe

there were threats on your life?

A. I believe in the past I’ve had threats upon my life, yes. But

I’m not saying at this point in time my—my—my situation

right now is dangerous for [M.R.J.M.], because it’s not. I’ve

survived in my community just fine for three years.

With regard to a January 2005 letter to his CPS worker, Michael elaborated as

follows:

Q. Look on the second page at the bottom, last paragraph.

“Love [M.R.J.M.], glad you had the chance to participate in

this. This could be a tobacco lawsuit. Might have to talk to

Gene Hackman.” What did that mean? What’s the tobacco

lawsuit?

A. Well, I believe at this point in time I have lung problems that

are being covered up medically. And I think they’re

being—lying about my medical condition because in

Arkansas, I traveled to Arkansas. And I sought medical, and

they found a blotch on my left lung. Since returning to

Texas, I have not been able to obtain a doctor for which will

view that film and say you have anything wrong with your

lung. But Arkansas contests that there is.

Q. Who was Gene Hackman?

. . . .

A. It would appear as though he’s a lawyer.

. . . .
31

Q. The next paragraph says, “At this point as America views the

situation we learn about government, civil rights and

especially parent rights. I suggest parents, moms especially,

should have kids at home and not at a hospital. Kids for

some reason tend to disappear.” Where do they go?

A. One more time, I’m questioning the medical pertaining to my

daughter. I mean, I guess the twins may just be factual. As

stated before, there’s a beautiful little girl in my community

that is her precise age. Now, until I can be proven that this

woman’s DNA—I’m sorry, this girl’s DNA is not my daughter,

I will contest that she is my daughter up until proven

otherwise by this court.

. . . .

The Court: So you’re requesting this Court to order a little girl that

lives in Golden Acres to be DNA tested?

A. Yes, ma’am.

Michael testified as follows with regard to his letter dated September 14:

Q. So I’m about three quarters of the way down. And it says,

“Questioned the Child Protective Services in Weatherford.

Review the medical findings of the case manager investigator

for which is in question have a past history pertaining to

illegal activity, where involved in my neighbor’s case. This

isn’t a tobacco lawsuit, or is it?” Do you think our case is a

tobacco lawsuit too?

A. Yeah, I think—I think I need to know who John Grisham is,

to be honest. I have no idea. Has this Court—has this been

in reference to any other material at all other than my

daughter? Yes, I am very concerned of issues pertaining to

this. And if there is any evidence for which we’ll find that

you pertained in any other legal proceedings involving me,

then I would ask the Court to respect my civil rights.
32

Q. Let’s continue. “If this is, I haven’t been paid. Not smart,

yet I have common sense to know when I should protect my

rights. As stated before, Thomas, Rick and Phillips have a

history, and Steve Martin just might be Lee Harvey Oswald.

Steve, Delores and Mary—Steve, Delores and Mary have a

history of involving themselves in children’s lives. Abusing

the system, ‘Rosemary’s Baby,’ to Steve Martin mov[ie] . . .

involving the child he found in the woods near a lake. ‘Bless

the Child’ family on the opposite side of the street from me.

The judge in ‘Identity’ was the judge in a recent movie Steve

Martin produced. As stated before this case stems back to

2001.” And we’re going to skip that next part. If you would

go towards the end, and I think you’re asking the Judge, “if

you assist me in obtaining this I won’t sing the Lamboda

while I’m here in court.”

A. Yeah. Ricky, I guess Richard Pryor, Ricky and I, Ricky,

whatever his name is, Vallens or whatever, he does live on

the right side of me. So, yeah, I guess I question Dolores

Phillips [his CPS worker] having known this individual, yes.

Michael’s letters were admitted into evidence.

Michael also testified that he expected M.R.J.M. to respect him, to

believe him, and to be reared according to his beliefs. He stated, “until you can

prove me wrong, anything I’ve stated in this court of law today, I believe to be

right.” 

Mother testified that, even if Michael had completed his service plan, she

would still have doubts about his ability to care and provide for M.R.J.M.,

stating that she would “worry about her living in a car one day. Going without

food or groceries.”
33

The evidence at trial demonstrated that Michael lacked the will and ability

to provide M.R.J.M., then age six, with a safe environment: he failed to

accept, complete, and cooperate with the State’s service plan; he failed to

effect personal and environmental changes until only a short time before

trial—the last two months in a seventeen-month process; and he failed to

demonstrate adequate parenting skills. Furthermore, the jury heard his bizarre

testimony about his conspiracy theories, including his theory that M.R.J.M. had

a twin that lived across the street from him.

The jury could have chosen to believe M.R.J.M.’s therapist’s testimony

that M.R.J.M. wanted to stay with her foster family and with her siblings and

Mother’s testimony that the foster family provided M.R.J.M. and the other

children with the structure that neither she nor Michael ever provided. Because

the jury could have formed a firm belief or conviction that terminating Michael’s

parental rights to M.R.J.M. was in M.R.J.M.’s best interest, we conclude that

the evidence is factually sufficient. See H.R.M., 209 S.W.3d at 108; C.H., 89

S.W.3d at 28. We overrule this portion of Issue 3.

E. Broad Form Jury Charge

Finally, Michael asserts in Issue 3 and Rehearing Issues 1 and 5 that he

challenged the trial court’s broad form submission of the jury charge. However,

he admitted that this challenge is contradicted by controlling Texas case law
34

that specifically authorizes broad form submission in parental rights cases. See

Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on

reh’g); see also J.T.G., 121 S.W.3d at 128–29 (applying E.B. to uphold jury

findings on grounds for termination when multiple grounds for termination were

sought and the trial court submitted the issue using a broad form question).

Furthermore, having found no error with regard to his factual sufficiency

challenges, it is unnecessary for us to consider whether disjunctive submission

was harmful. See, e.g., In re J.M.M., 80 S.W.3d 232, 245, 248–50 (Tex.

App.—Fort Worth 2002, pet. denied) (reaching same conclusion on similar

facts), disapproved of on other grounds, J.F.C., 96 S.W.3d at 267 n.39.

Therefore, this issue is moot. We overrule this last portion of Issue 3 and

Rehearing Issue 5.

IV. Conclusion

Having overruled all of Michael’s issues, we affirm the trial court’s

judgment terminating Michael’s parental rights to M.R.J.M.

BOB MCCOY

JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: February 26, 2009