Writing Sample - Legal Brief

Please note that this document was prepared as a law school assignment and may not be in accordance with all

Texas Rules of Appellate Procedure. This document is intended as a writing sample only.

NO. 008-000-2

________________________________________________________________

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

________________________________________________________________

MARY GREEN,

Appellant,

V.

DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,

Appellee.

________________________________________________________________

FROM THE 309TH FAMILY DISTRICT COURT

OF HARRIS COUNTY, TEXAS

________________________________________________________________

BRIEF OF APPELLEE DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES

________________________________________________________________

Exam Number: 4500

Exam Number: 4500 Law Firm

State Bar Number: 777777

1300 Main Street

Houston, Texas 77027

Phone: (713) 777-7777

Fax: (713) 999-9999

[email protected]

COUNSEL FOR APPELLEE

DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES

ORAL ARGUMENT NOT REQUESTED

Appellant Motion

Exam Number: 4500

2

Please note that this appellate brief was prepared for a law school course and does not contain all requirments in

accordance to Texas Rules of Appellant Procedure. Facts and parties invovled are fictional.

TABLE OF CONTENTS

Statement of the Case …………………………………………………………..………….. 3

Any Statement Regarding Oral Argument .………………………………………………... 4

Issue Presented …………………………………………………………………………….. 4

Statement of the Facts …………………………………………………………..…………. 4

Summary of the Argument ………………………………………………………………… 6

Standard of Review ………………………………………………………………………... 7

Argument ………………………………………………………………………….……….. 7

I. THE TRIAL COURT PROPERLY TERMINATED APPELLANT’S …… 8

PARENTAL RIGHTS SINCE APPELLANT KNOWINGLY ALLOWED

THE CHILD TO REMAIN IN CONDITIONS WHICH ENDANGERED

THE CHILD’S PHYSICAL AND EMOTIONAL WELL-BEING.

II. THE TRIAL COURT PROPERLY TERMINATED APPELLANT’S ……. 11

PARENTAL RIGHTS SINCE TERMINATING APPELLANT’S

PARENTAL RIGHTS WAS IN THE BEST INTEREST OF THE CHILD.

Prayer for Relief ……………………….…………………………………………………… 14

Certificate of Service ………………………………………………………………….......... 15

Appendix ……………………………………………………………………………………. 15

Appellant Motion

Exam Number: 4500

3



INDEX OF AUTHORITIES

Cases

In the Interest of K.C.F., ……................................................................................. 8, 9, 10, 11, 12

2014 Tex. App. LEXIS 6131 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.)

(mem. op.).

In the Interest of S.M.R., …………………………………………………………………... 7, 8

434 S.W.3d 576 (Tex. 2014).

In re R.W., ………………………………………………………………………………..... 10

2011 Tex. App. LEXIS 4556 (Tex. App.—Houston [lst Dist.] June 16, 2011, no pet.)

(mem. op.).

In re T.E.G., ………………………………………………………………………………… 8, 9

2014 Tex. App. LEXIS 4979 (Tex. App.—Houston [1st Dist.] May 8, 2014, no pet.)

(mem. op.).

Jordan v. Dossey, …………………………………………………………………… 9, 10, 12, 13

325 S.W.3d 700 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (mem. op.).

Smith v. Tex. Dep’t of Family and Protective Servs., ………………………………………. 7, 8

2009 Tex. App. LEXIS 9772 (Tex. App.—Houston [1st Dist.] December 3, 2009,

no pet.) (mem. op.).

Statutes and Rules

Tex. Fam. Code Ann. Section 161.001(1)(D) ………………………………………………. 8

Tex. R. App. P. 6.3 …………………………………………………………………………. 15

Tex. R. App. P. 9.4(g) ………………………………………………………………………. 4

Tex. R. App. P. 9.5(b) ………………………………………………………………………. 15

Tex. R. App. P. 9.5(d) ………………………………………………………………………. 15

Tex. R. App. P. 9.5(e) ………………………………………………………………………. 15

Tex. R. App. P. 39.1 ………………………………………………………………………… 4

Appellant Motion

Exam Number: 4500

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STATEMENT OF THE CASE

Nature of the case: Child custody dispute—termination of Appellant’s parental rights.

Course of proceedings: Department of Protective and Family Services brought suit to

terminate appellant’s parental rights and appoint the child’s current

caretakers as sole managing conservators and eventual guardians

of the child.

Trial court’s disposition: The trial court entered judgment in favor of Department of

Protective and Family Services and agreed to terminate appellant’s

parental rights. The trial court found that appellant knowingly

allowed the child to remain in conditions which endangered the

child’s physical or emotional well-being and that it is in the best

interest of the child for appellant’s parental rights to be terminated.

Appellant is appealing this decision based on its factual sufficiency.

Appellant Motion

Exam Number: 4500

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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App. P. 39.1 and Tex. R. App. P. 9.4(g), the State requests to waive

oral arguments since the issues are well established in Texas case law. However, the State will

present oral arguments if this Court determines an oral argument is needed.

Appellant Motion

Exam Number: 4500

6



ISSUE PRESENTED

Under Texas law, does a parent’s inability to support and care for a child enable the state

to terminate the parent’s parental rights when termination of the parental rights it is in the best

interest of the child and the parent’s actions knowingly allow the child to remain in conditions

that endanger the child’s physical or emotional well-being?

Appellant Motion

Exam Number: 4500

7



STATEMENT OF THE FACTS

Overview

Department of Protective and Family Services (“the State”) successfully brought suit to

terminate Mary Green’s (“Appellant”) parental rights and appoint the child’s (“R.S.”) current

caretakers as sole managing conservators and eventual guardians of R.S. Appellant is now

appealing the trial court’s ruling.

Removal of R.S. from Appellant’s Custody

R.S. was born on January 6, 2012, when Appellant was sixteen years old. Appellant

began traveling with a young, drug-infused jazz band throughout the Southwest United States.

(R.R. 6.) Appellant has been known to use illegal drugs on several different occasions. (R.R. 7.)

In April of 2014, Appellant left R.S. under the sole supervision of the traveling band—for six

continuous weeks—while Appellant attended to Appellant’s sick mother. (R.R. 7.)

Late on the evening of May 15, 2014, an Alabama Protective Services employee

responded to call to investigate a young child who was wandering around a jazz concert. (C.R.

5.) The child did not have shoes on, was in close proximity to individuals drinking beer and

consuming illegal drugs, and was exposed to violent episodes between members of the jazz band.

(C.R. 5.) Further investigation uncovered that the child was fed gummy bears for breakfast and

dinner. (C.R. 5.) After these findings, the employee obtained permission to take the child into

custody. (C.R. 6.) Appellant arrived to pick up R.S. within forty-eight hours. (C.R. 6.)

Appellant returned to Texas with custody of R.S. (R.R. 2.) Appellant did not have a

suitable residence and stayed with R.S. at a motel. (R.R. 2.) A State employee visited the motel

and found the room to be in complete turmoil. (R.R. 3.) Trash was all over the room, the room

contained no nutritious food, there was no place for R.S. to sleep, and marijuana cigarettes were

Appellant Motion

Exam Number: 4500

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on the floor. (R.R. 3.) R.S. was temporarily placed into the custody of her current caregivers.

(R.R. 3.) Appellant has served time in jail on two occasions, leaving R.S. with R.S.’s

grandmother, and is currently in jeopardy of receiving another warrant for her arrest. (R.R. 14.)

Termination of Appellant’s Parental Rights

On June 30, 2014, the State and Appellant agreed to a reunification plan—describing

exactly what Appellant needed to accomplish in order to regain custody of R.S. Under the plan,

Appellant agreed: 1) to refrain from using illegal drugs; 2) to obtain and maintain a stable home;

3) to obtain and maintain a stable job; 4) to not associate with known drug users; and 5) to

complete an online parenting class. (C.R. 2.) If all of the tasks were completed by September 1,

2014, Appellant would be reunited with R.S.—failure to complete the tasks would cause the

State to bring termination proceedings against Appellant. (C.R. 2.)

Although Appellant passed all administered drug tests and was able to find an apartment,

concerns still persist since Appellant does not formally pay rent to establish a financial ability to

maintain a stable home and Appellant still wilfully associates with a known drug user. (R.R. 4.)

Not only does Appellant associate with a known drug user, Appellant is in contact several times

a week and allows the known drug user to stay overnight at Appellant’s apartment. (R.R. 13.)

Appellant was able to obtain a job but Appellant was not able to do so until after the September

1st deadline. (R.R. 4.) Furthermore, Appellant was unable to timely complete the parenting

class—completed four months after the deadline. (R.R. 4.)

Appellant failed to comply with the reunification plan and the trial court terminated

Appellant’s parental rights and appointed custody to R.S.’s current caregivers. (C.R. 4.) The

trial court ruled: 1) Appellant knowingly allowed R.S. to remain in conditions which endangered

Appellant Motion

Exam Number: 4500

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R.S.’s physical or emotional well-being; and 2) it is in the best interest of R.S. for Appellant’s

parental rights to be terminated. (C.R. 4.)

SUMMARY OF THE ARGUMENT

When a parent has abused, neglected, abandoned or endangered a child, a court may

terminate the parent's rights to the child. Terminating a parent’s parental rights requires the

proponent to establish one or more of the recognized grounds for termination and to establish

that termination is in the best interest of the child. Here, Appellant purposefully placed R.S. in

extremely hazardous environments—infested with rampant drug use and violence—lasting for

extensive periods of time. Appellant knowingly allowed R.S. to remain in conditions that

endangered R.S.’s physical and emotional well-being—which satisfies the statute's first

prerequisite for termination.

In order to establish that termination is in the best interest of the child, the court must

look at a variety of factors. Courts often look at the parent’s ability to provide a safe, stable

environment for the child, while keeping the child away from drugs and known drug users.

Appellant wilfully associated with a known drug user, and permitted R.S.’s presence around

illegal drug use. Furthermore, it is not in the child’s best interest that the child be made a guinea

pig upon whom parents should be allowed to practice until they might become more proficient in

child care. Courts look at the totality of the circumstances surrounding the case to determine the

child’s best interest. At the trial court the totality of the circumstances proved that termination of

Appellant’s parental rights was in the best interest of R.S. The burden of proof is on the

Appellant to prove that the trial court’s decision was factually insufficient.

Appellant Motion

Exam Number: 4500

10



STANDARD OF REVIEW

A judgment terminating parental rights is factually sufficient when the evidence is such

that a reasonable jury could form a firm belief or conviction that grounds exist for termination.

In the Interest of S.M.R., 434 S.W.3d 576, 578 (Tex. 2014). To reverse a judgment for factual

insufficiency, the court of appeals must detail all the relevant evidence and explain why it is

insufficient to support the judgment. Id. 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 of conviction, then the evidence is

factually insufficient. Smith v. Tex. Dep’t of Family and Protective Servs., 2009 Tex. App.

LEXIS 9772, *13 (Tex. App.—Houston [1st Dist.] December 3, 2009, no pet.) (mem. op.). The

burden of proof is on the Appellant to prove factual insufficiency of the evidence.

ARGUMENT

When a parent has abused, neglected, abandoned or endangered a child, a court may

terminate the parent's rights to the child. In the Interest of S.M.R., 434 S.W.3d 576, 580 (Tex.

2014). The involuntary-termination statute provides two prerequisites for termination: first, the

proponent must establish one or more of the recognized grounds for termination, and, second,

termination must be in the child's best interest. Id. The involuntary-termination statute sets out

20 different courses of parental conduct—including knowingly allowing a child to remain in

conditions that endanger the child’s physical and emotional well-being—which may serve as a

ground that satisfies the statute's first prerequisite for termination. Id. Clear and convincing

proof of any one ground will support a judgment terminating parental rights, if similar proof also

exists that termination is in the child's best interest. Id.

Appellant Motion

Exam Number: 4500

11



I. THE TRIAL COURT PROPERLY TERMINATED APPELLANT’S PARENTAL

RIGHTS SINCE APPELLANT KNOWINGLY ALLOWED THE CHILD TO

REMAIN IN CONDITIONS WHICH ENDANGERED THE CHILD’S

PHYSICAL AND EMOTIONAL WELL-BEING.

Texas Family Code permits termination of parental rights when clear and convincing

evidence shows that the parent knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional well-being of the child.

Tex. Fam. Code Ann. Section 161.001(1)(D). The code requires a showing that the environment

in which the child was placed posed a danger to the child’s physical or emotional health, and it

permits the termination based on a single act or omission by the parent. In the Interest of K.C.F.,

2014 Tex. App. LEXIS 6131, *31 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem.

op.). Danger to a child may be inferred from parental misconduct even if the conduct is not

directed at the child and the child suffers no actual injury. Smith v. Tex. Dep’t of Family and

Protective Servs., 2009 Tex. App. LEXIS 9772, *13 (Tex. App.—Houston [1st Dist.] December

3, 2009, no pet.) (mem. op.). The conduct does not have to occur in the presence of the child.

Id. The conduct may occur before the child’s birth and the conduct may occur both before and

after the child has been removed by the department. Id.

In re T.E.G. involved a mother that used illegal drugs both before and after the children

were removed from the mother’s custody, the mother failed drug tests, and the mother had been

convicted of an assault, in addition to several other prior convictions. In re T.E.G., 2014 Tex.

App. LEXIS 4979, *1 (Tex. App.—Houston [1st Dist.] May 8, 2014, no pet.) (mem. op.). In re

T.E.G. was decided by this Court and determined that the totality of the conduct was enough to

terminate the mother’s parental rights. Id. When evaluating the endangerment of a child, the

court must consider all persons and influences within the child’s environment—not solely the

actions of the parent—that relate to drug use and violence. See In the Interest of K.C.F., 2014

Appellant Motion

Exam Number: 4500

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Tex. App. LEXIS 6131, *33 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.).

(Inappropriate, abusive, or unlawful conduct by persons with whom the child is compelled to

associate on a regular basis are part of the conditions of the child’s environment. Thus, abusive

or violent conduct by a parent or a person with whom the child is forced to associate with, as

well as illegal drug use and criminal activity, support a conclusion that the child’s surroundings

endanger the child’s physical or emotional well-being.)

Similar to the mother in In re T.E.G., who used illegal drugs and had violent tendencies,

Appellant placed R.S. in an environment heavily contaminated by rampant drug use and wilfully

exposed R.S. to violence. Appellant knew that the band enthusiastically used illegal drugs and

had a high propensity of violence—nevertheless Appellant placed R.S. under the band’s direct

supervision for six continuous weeks. See In the Interest of K.C.F., 2014 Tex. App. LEXIS

6131, *32 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.). (Actual injury to

the child is not required—a child is endangered when the environment creates a potential for

danger in which the parent is aware but disregards.)

Furthermore, Appellant has been arrested on several occasions and has admitted to using

illegal drugs, subjecting R.S. to uncertainty and instability. All of the evidence in this case,

including Appellant’s imprisonment, shows a course of conduct that has the effect of

endangering the physical or emotional well-being of the child. See Jordan v. Dossey, 325

S.W.3d 700, 724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (mem. op.). (Conduct that

subjects a child to life of uncertainty and instability endangers the child’s physical and emotional

well-being.)

In re R.W. does not apply since R.S.’s current caregivers are able to provide R.S. with a

nurturing, stable environment and R.S. was continuously placed in an endangering environment

Appellant Motion

Exam Number: 4500

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by Appellant—threatening R.S.’s physical and emotional well-being. In re R.W., 2011 Tex.

App. LEXIS 4556 (Tex. App.—Houston [lst Dist.] June 16, 2011, no pet.) (mem. op.). In In re

R.W., on appeal the evidence was found to be factually insufficient to support termination. The

mother's behavior was not egregious enough, on its own, to warrant termination of the mother’s

parental rights. While she allowed her children to live in unsanitary conditions and neglected

their hygiene, there was no evidence that they suffered from illness, malnutrition, or abuse.

Children need a safe and stable environment. Without stability a parent is unable to

provide for the child’s emotional and physical needs and a parent’s instability threatens the

physical well-being of the child. Appellant has shown a repeated pattern of wilfully associating

with a known drug user and permitting the known drug user’s involvement with R.S.

Furthermore, Appellant has not demonstrated a desire to change her behavior—even while

facing a strong possibility of permanently losing parental rights of R.S. Texas courts have

consistently found that a parent’s decision to leave a child in the care of a known drug user is

relevant to the predicate acts or omissions for endangerment purposes. Therefore, the court

should infer that Appellant will continue to put R.S. in situations that endanger R.S.’s physical

and emotional well-being and uphold the trial court’s ruling. See In the Interest of K.C.F., 2014

Tex. App. LEXIS 6131, *29 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.).

(Stability and permanence are paramount in the upbringing of children, and an endangering

environment can be created by a parent’s involvement illegal drugs, and a factfinder may infer

from past conduct that similar conduct will recur if the children are returned to the parent.)

Appellant Motion

Exam Number: 4500

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II. THE TRIAL COURT PROPERLY TERMINATED APPELLANT’S PARENTAL

RIGHTS SINCE TERMINATING APPELLANT’S PARENTAL RIGHTS WAS

IN THE BEST INTEREST OF THE CHILD.

For best interest purposes in termination of parental rights cases, among others, the

following factors 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 frequency and nature of out-of-home placements; the magnitude, frequency,

and circumstances of harm to the child; whether there is a history of substance abuse by the

child's family or others that have access to the child's home; whether the child's family

demonstrates adequate parenting skills, including providing the child with minimally adequate

health and nutritional care, guidance and supervision, and a safe environment; and whether an

adequate social support system consisting of an extended family and friends is available to the

child. In the Interest of K.C.F., 2014 Tex. App. LEXIS 6131, *38 (Tex. App.—Houston [1st

Dist.] June 5, 2014, no pet.) (mem. op.).

The Supreme Court of Texas has set out additional factors that courts may consider when

determining the best interest of the child, including: (1) the desires of the child; (2) the

emotional and physical needs of the child now and in the future; (3) the emotional and physical

danger to the child now and in the future; (4) the parental abilities of the individual seeking

custody; (5) the programs available to assist these individuals to promote the best interest of the

child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the

stability of the home or proposed placement; (8) the acts or omissions of the parent that may

indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the

acts or omissions of the parent. In the Interest of K.C.F., 2014 Tex. App. LEXIS 6131, *38

(Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.). This is not an exhaustive list,

Appellant Motion

Exam Number: 4500

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and a court need not have evidence on every element listed in order to make a valid finding as to

the child's best interest, especially when there is undisputed evidence that the parental

relationship endangered the child. Id. While no one factor is controlling, analysis of a single

factor may be adequate in a particular factual situation to support a finding that termination is in

the best interest of the child. Id. The best interest analysis may consider, not only direct

evidence, but also circumstantial evidence, subjective factors, and the totality of the evidence.

Id. at 40.

The state’s fundamental interest in termination of parental rights cases is to determine the

best interest of the child—the child’s needs and interests supersede the needs and interests of the

parent. Efficiently determining the best interest of the child and coming to a final decision is

essential so that adoption to a new caregiver or the return to the parent is not unduly prolonged.

The State, this Court, and R.S. cannot wait around to see if Appellant is able to become an

adequate and providing mother. R.S. is a young child, whose needs are certain to become greater

as she matures. Prolonging the inevitable task of securing R.S. a stable home only intensifies the

harmful circumstances to which R.S. has been exposed. See Jordan v. Dossey, 325 S.W.3d 700,

730 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (mem. op.). (Prompt and permanent

placement of the child in a safe environment is presumed to be in the child’s best interest. The

need for permanence is the paramount consideration for the child’s present and future physical

and emotional needs. Prolonged termination proceedings can have psychological effects on a

child of such magnitude that time is of the essence.)

Although there is a strong presumption that a child’s best interests are served by

maintaining the parent-child relationship, parental rights are not absolute. Just as it is imperative

for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also

Appellant Motion

Exam Number: 4500

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essential that emotional and physical interests of the child not be sacrificed merely to preserve

that right. Jordan v. Dossey, 325 S.W.3d 700, 729 (Tex. App.—Houston [1st Dist.] 2010, pet.

denied) (mem. op.). The court cannot terminate Appellant’s parental rights merely because a

more suitable parent is available. See Jordan v. Dossey, 325 S.W.3d 700, 732 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied) (mem. op.). (Termination decisions cannot be used to

reallocate children to better and more prosperous parents.)

Appellant has frequently left R.S. to fend for herself, whether it involves R.S. traveling

across the country with a delinquent, drug-infused jazz band or staying with Appellant’s sole

support figure while Appellant served time in jail on several occasions. Two independent

inspections by State representatives have revealed less than minimally adequate health and

nutritional care—R.S. enjoyed gummy bears for several meals on one encounter and no

nutritional food was located on the second visit. Furthermore, R.S.’s current caretakers are

extremely stable, enjoy a high-level quality of life, and are willing to permanently care for R.S.

All of these factors should be taken into consideration to determine that the termination of

Appellant’s parental rights is in the best interest of R.S.—R.S. needs a permanent home and

cannot wait for Appellant to consider her interests. See Jordan v. Dossey, 325 S.W.3d 700, 731

(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (mem. op.). (It is not in the child’s best

interest that the child be made a guinea pig upon whom parents should be allowed to practice

until they might become more proficient in child care.)

Appellant Motion

Exam Number: 4500

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PRAYER FOR RELIEF

While terminating a parent’s parental rights can be viewed to be the equivalent of the

death penalty in family law cases, failing to terminate a parent’s parental rights—when the

evidence and totality of the circumstances requires termination—is unequivocally more

detrimental and should be considered the death penalty for the child, not the parent.

The record and facts of this case provide ample support to determine that Appellant

cannot adequately care for R.S. Appellant lacks the ability to provide R.S. with a stable

environment and has consistently placed R.S. in situations with a high propensity of causing

irreparable physical and emotional harm. Furthermore, overturning the trial court’s decision

goes against strong case precedent and is certain to harm more children in the future.

For the foregoing reasons, the Appellee, Department of Family and Protective Services,

respectfully requests this Court to affirm the judgment of the lower court and render judgment to

terminate Appellant’s parental rights.

Dated this 16th day of April, 2015.

Respectfully submitted,

Exam Number: 4500



1300 Main Street


Phone: (713) 777-7777

Fax: (713) 999-9999

[email protected]

Counsel for Appellee

Department of Family and Protective Services

Appellant Motion

Exam Number: 4500

18



CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I hereby certify

that a true and correct copy of this brief has been served upon all counsel of record via certified

mail, return receipt requested on this the 16th day of April, 2015:

Respectfully submitted,

Exam Number: 4500



1300 Main Street


Phone: (713) 777-7777

Fax: (713) 999-9999

[email protected]

/s/ Exam Number 4500

Exam Number: 4500

Counsel for Appellee

Department of Family and Protective Services

Appellant Motion

Exam Number: 4500

19



APPENDIX

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Writing Sample - Legal Brief