In re J.M.M.

• Decision Date: 13 June 2002
• Docket Number: No. 2-01-100-CV.,2-01-100-CV.
• Citation: 80 S.W.3d 232
• Parties: In the Interest of J.M.M., B.R.M., and W.T.M., Children.
• Court: Texas Court of Appeals

80 S.W.3d 232

In the Interest of J.M.M., B.R.M., and W.T.M., Children.

No. 2-01-100-CV.

Court of Appeals of Texas, Fort Worth.

June 13, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephen R. Bjordammen, Wichita Falls, for Appellant.

John Cornyn, Atty. Gen. of Texas; Howard G. Baldwin, Jr., First Ass't Atty. Gen.; Julie Caruthers Parsley, Solicitor Gen.; Melinda H. Sims, Ass't Solicitor Gen., Austin, for Appellee.

PANEL B: HOLMAN, GARDNER, and WALKER, JJ.

OPINION

ANNE GARDNER, Justice.

I. INTRODUCTION

This is an appeal from a judgment rendered on a jury verdict, terminating parental rights. The judgment terminated the parental rights of Appellant Marium M. and her husband James M. as to three of their children, J.M.M., B.R.M., and W.T.M. Marium was the only parent to appear at trial and is the only parent appealing. In ten issues, Marium complains of the submission of two jury instructions regarding alternative means of endangerment of her children, no evidence to support termination on any of four grounds submitted, legal and factual insufficiency of the evidence of each ground to support the verdict, lack of an instruction submitting an affirmative defense, and the constitutionality of the broad-form jury questions inquiring as to termination with respect to each child with instructions constituting a disjunctive submission of all grounds asserted. We will affirm.

II. FACTUAL BACKGROUND

Marium and James M. are the natural parents of J.M.M., four years old, B.R.M., three years old, and W.T.M., twenty-two months old at the time of trial. Marium and James are also the natural parents of two other children, J. and C.; however, their parental rights were terminated as to those children on June 19, 1997, on grounds of endangerment and abandonment.

In May of 1991, the parents' first child, J., was born in Dallas, Texas. Due to J.'s premature birth, the Texas Department of Protective and Regulatory Services (TDPRS) investigated the parents and took J. into protective custody. After six months, TDPRS returned J. to the parents' custody.

After J. was returned to the parents, they began to travel through various states. The parents moved first to West Virginia, then to Arkansas. In 1992, while they were in Arkansas, C. was born. After C.'s birth, the parents moved to Daytona Beach, Florida. While in Florida, Marium decided to leave James. Marium took the children and moved to her mother's home in Arkansas.

On February 10, 1993, shortly after Marium moved to Arkansas, James pleaded guilty to lewd and lascivious conduct, assault on a child. He was sentenced to four and one-half years' imprisonment. Some time in 1993, Marium and the children moved back to West Virginia. When James was released from prison in 1995, Marium reunited with him, giving him full access to the children, and they moved to Lebanon, Missouri.

While living in Missouri, the parents became friends with Clarence and Reina Krusen. After six or seven months, the parents left their children, J. and C., with the Krusens and moved to Houston, Texas. The parents executed a signed statement giving the Krusens temporary custody of the children "until further notice." After the parents arrived in Houston, Marium wrote two letters to the Krusens; both letters were returned. The parents contacted the Houston police and were told the Krusens had moved to an undisclosed address. In an effort to find their children, the parents joined a traveling carnival. By this time, Marium was pregnant with J.M.M.

While the carnival was in Arizona, in April of 1996, J.M.M. was born four-weeks premature and underweight. J.M.M.'s premature birth prompted the Arizona Department of Protective Services to initiate an investigation of the parents. The Arizona officials notified the parents that Texas authorities were looking for them in connection with the abandonment of J. and C. Marium asked the Arizona authorities to contact whoever had J. and C. and ask them to get in touch with her. The Arizona authorities concluded their investigation, allowing J.M.M. to leave the hospital with the parents.

After J.M.M. was released from the hospital, the parents moved to Knoxville, Tennessee to start a computer business, which failed after a couple of months. The parents moved on, this time to Pigeon Forge, Tennessee. On March 30, 1997, B.R.M. was born in nearby Severville, Tennessee. Following the birth of B.R.M., the parents moved to Daytona, Florida. Six months after moving to Florida, the parents moved again, to Dothan, Alabama. James joined a traveling carnival and left while the family stayed in Dothan. A couple of months later, he returned, and the family started selling T-shirts out of a bus.

When James returned, the family left Alabama for Indiana with their T-shirt business, moving from campsite to campsite and living in the bus with J.M.M. and B.R.M. for approximately one year. They were headed back to Louisiana when two of their tires blew out, stranding the family in Bowie, Texas. In Bowie, the parents lived in a house they agreed to renovate in exchange for rent. On March 9, 1999, W.T.M. was born in Bowie, Texas. After a dispute with their landlord, the parents moved to Faith Mission, a shelter in Wichita Falls, Texas.

On March 12, 1999, the TDPRS received a referral that the parents' children were dirty and neglected. In response to the referral, Debbie Adams, a Child Protective Services (CPS) investigator, visited Faith Mission and found the children were dirty, wearing wet clothing, and verbally undeveloped. A resident at the shelter described the children as running rampant through the shelter, and even in the street. According to that witness, Marium was seen ignoring her children and, when not ignoring them, she was seen yelling or screaming, and slapping or spanking them, telling them it was their fault she was at the Mission. Adams observed that the children showed no attachment to Marium, did not have a doctor, their immunizations were not current, and J.M.M. had a cold.

Adams returned seven days later to find that J.M.M. still had a cold. Adams took Marium and the children to a doctor, who found the children were malnourished and developmentally delayed. To address the children's developmental delay, he referred them to North Texas Rehabilitation Services.

On March 20, 1999, the TDPRS received a second referral alleging James and Marium had physically abused both J.M.M. and B.R.M. Adams again visited the family and found that J.M.M. was limping, had numerous bruises on his face, scratches under his right eye, and three bruises on his upper back. Marium claimed J.M.M. "bruises real easy" and was limping because he might have caught his leg in the bed the night before.

The children were immediately taken to a hospital where an examination of J.M.M. revealed that he had suffered from possible child abuse. James admitted to CPS caseworker, Lorraine Hail, that he struck then three-year-old J.M.M. in the face because he was "sassy" with his mother and would not go to bed. Hail created a safety plan, which both Marium and James signed. The safety plan prohibited James from being alone with any of the children.

Shortly after the parents returned from the hospital, James fled to Dallas, Texas with the stated intent to get a job, save money, and turn himself in for child abuse. On March 23, 1999, an arrest warrant for James was issued. James was apprehended in Dallas and transported back to Wichita Falls, where he pleaded guilty and was sentenced to 180 days in jail for injury to a child. Despite James's guilty plea, Marium refused to believe James had injured their children. Pursuant to a plea agreement, James was credited with time served and was released from jail on the day of his guilty plea. On the day of his release, Marium and the children reunited with James and left Faith Mission to stay in a local motel.

Nine days later, TDPRS received a third referral alleging that the parents had arrived at a nearby church, and that they were dirty, hungry, homeless, and were begging for money to repair their car. When Adams arrived at the church she noticed J.M.M. had scratches under his right eye and bruises on his back. James's explanation was that J.M.M. was a "clumsy" child.

III. PROCEDURAL BACKGROUND

After considering a long list of factors, Adams decided the children should be removed and placed into temporary foster care.¹ On August 10, 1999, the TDPRS filed its original petition seeking emergency protection of the children. The parents agreed to temporary separation from their children. On September 14, 1999, the court appointed TDPRS as temporary managing conservator of the children. A service plan was developed and a court order was issued establishing the actions necessary for the parents to regain custody of their children.

At the time the order was issued, TDPRS's goal was family reunification. However, Marium missed counseling appointments, refused to pay child support, changed residences four or five times despite a requirement that she maintain stable housing, and failed to maintain stable employment. James worked in roofing, construction, and as a male stripper. During visitations with the children, he exhibited manic behavior and would leave early.

In January of 2000, the TDPRS changed its goal from reunification to termination after it concluded that Marium and James were in violation of the court's order and support plan. In April of 2000, James purportedly left Wichita Falls, although there were reports that he was seen in the area after that date. In October of 2000, James was arrested in Dallas for prostitution. He was found guilty and incarcerated.

On May 19, 2000, the TDPRS amended its pleadings to seek termination of the parents' parental rights as to the three children. On January 10, 2001, trial of this case began before a jury. The jury rendered its verdict of "yes," on January 16, 2001, in response to...