D. G. and D. R., III v. Texas Department of Family and Protective Services
03-17-00366-CV
| Tex. App. | Oct 26, 2017Background
- Parents (Mother D.G. and Father D.R., III) appealed termination of their parental rights to three children; trial court found statutory grounds and best interest by clear and convincing evidence.
- Mother: multiple positive drug tests (marijuana, hydrocodone), children (and another child) tested positive for marijuana at birth; admitted using marijuana while caring for children and during pregnancy; missed many drug tests.
- Father: positive tests for cocaine and marijuana, missed/failed court-ordered tests, refused some tests, arrests (public intoxication, breaking glass; later allegedly breaking into a house, injuring his mother, resisting arrest), unstable housing.
- Procedural preservation: Mother did not challenge the best-interest finding on appeal; Father failed to preserve both legal- and factual-sufficiency challenges (no motion for new trial or other required pretrial post-verdict motions).
- Batson challenge: Mother’s counsel argued the State used peremptory strikes disproportionately against black jurors; court inquired into strike reasons (juror believed marijuana was okay and displayed nonverbal cues), denied mistrial/motion to rescind one strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence legally and factually sufficient to terminate Mother under Tex. Fam. Code § 161.001(b)(1) (subsection E: endangerment) | Mother argued evidence insufficient to prove conduct endangering child(ren) under subsection (E). | State pointed to positive infant drug tests, Mother’s positive tests during case, admissions of using marijuana while caring for children, missed tests — supporting endangerment. | Court: Affirmed — evidence (drug use while pregnant/while caring for children, missed tests, admissions) was legally and factually sufficient to support termination under subsection (E). |
| Whether evidence legally and factually sufficient to terminate Father and support best-interest finding | Father argued insufficient evidence for statutory ground(s) and best interest. | State pointed to drug positives, missed/failed tests, violent/volatile arrests and behavior, unstable housing; also argued Father failed to preserve sufficiency complaints. | Court: Affirmed — Father did not preserve sufficiency challenges; even on merits evidence supported endangerment and best-interest findings. |
| Whether trial court abused discretion in denying mistrial on Batson challenge (peremptory strike of juror who believed marijuana use acceptable) | Parents argued pattern of racially disparate strikes and mistrial should have been granted. | State gave race-neutral reasons: juror stated marijuana was okay and displayed unfavorable nonverbal cues; court observed similar strikes for jurors who favored marijuana. | Court: Affirmed — court could reasonably credit race-neutral explanation (views on marijuana and demeanor); no abuse of discretion in denying mistrial. |
Key Cases Cited
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (standards for legal and factual sufficiency under clear-and-convincing evidence)
- In re K.M.L., 443 S.W.3d 101 (Tex. 2014) (review standards for sufficiency)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (factual sufficiency framework)
- Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987) (endangerment may be inferred from parental misconduct)
- In re E.N.C., 384 S.W.3d 796 (Tex. 2012) (parental conduct need not be directed at child to constitute endangerment)
- In re M.C., 917 S.W.2d 268 (Tex. 1996) (endangerment may exist without actual injury)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (considering pre- and post-birth conduct, including drug use)
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (three-step Batson framework for peremptory strikes)
- Goode v. Shoukfeh, 943 S.W.2d 441 (Tex. 1997) (peremptory strike based on race violates equal protection)
- Nieto v. State, 365 S.W.3d 673 (Tex. Crim. App. 2012) (demeanor/nonverbal conduct can justify peremptory strike)
- Davis v. Fisk Elec. Co., 268 S.W.3d 508 (Tex. 2008) (peremptory strikes may be based on nonverbal conduct)
- United States v. Mixon, 977 F.2d 921 (5th Cir. 1992) (juror demeanor can be race-neutral reason for strike)