in the Interest of A. W., a Minor Child ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00118-CV ______________________________

IN THE INTEREST OF A.W., A MINOR CHILD

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On Appeal from the County Court at Law Cherokee County, Texas Trial Court No. 2007-01-0021

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

The use of illegal drugs figured into the trial court's termination of Norman Wardsworth's parental rights to A.W., born January 9, 2007. A.W.'s mother, with whom Wardsworth lived during her pregnancy, used cocaine during the pregnancy: post-natal testing on A.W. proved that use. Post-natal drug tests administered to Wardsworth and the mother were both positive for cocaine. The trial court terminated both Wardsworth's and the mother's parental rights to A.W. Wardsworth, alone, appeals, claiming that the evidence is legally and factually insufficient to establish that termination of his rights is in A.W.'s best interest. ⁽¹⁾ We affirm.

The standard of review in parental rights termination proceedings is clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2007); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2003). The evidence is clear and convincing when the proof is such that it produces in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established by the State. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). Because termination findings must be based on clear and convincing evidence, not simply a preponderance of the evidence, the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. J.F.C., 96 S.W.3d at 264-66.  

In reviewing the legal sufficiency of the evidence, we view all the evidence in a light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Tex. Fam. Code Ann. § 101.007 (Vernon 2002); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Looking at the evidence in the light most favorable to the judgment means that we must assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266.

When reviewing a factual sufficiency challenge to a parental rights termination, we consider the evidence the fact-finder could reasonably have found to be clear and convincing. See id.; C.H., 89 S.W.3d at 25-26. In applying this standard to a trial court's findings, we ask whether there was sufficient evidence presented to produce in the mind of a rational fact-finder a firm belief or conviction as to the truth of the allegations sought to be established. In re N.R., 101 S.W.3d 771, 774 (Tex. App.--Texarkana 2003, no pet.). If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. J.F.C., 96 S.W.3d at 266; In re A.A.T., 162 S.W.3d 856, 857-58 (Tex. App.--Texarkana 2005, no pet.); In re N.H., 122 S.W.3d 391, 396 (Tex. App.--Texarkana 2003, pet. denied).

The best interest of the child is a statutorily prescribed element for parental rights termination. See J.F.C., 96 S.W.3d at 262. The State has the burden of proving, by clear and convincing evidence, both a statutory ground for termination, see Tex. Fam. Code Ann. §  161.001(1),  and  that  termination  is   in  the  best  interest  of  the  child.  See  Tex.  Fam.  Code Ann. § 161.001(2).

In determining the best interest of A.W., many factors could be considered. Section 263.307 of the Texas Family Code provides that "prompt and permanent placement" of a child "in a safe environment" is presumed to be in that child's best interest, and then sets out a number of factors that should be considered in determining whether a child's parents are willing and able to provide that environment. See Tex. Fam. Code Ann. § 263.307(a), (b) (Vernon 2002). Such listed factors that appear relevant to our review include the following:

(1) the child's age and physical and mental vulnerabilities;

. . . .

(8) whether there is a history of substance abuse by the child's family . . . ;

. . . .

(10) 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;

. . . .

(12) whether the child's family demonstrates adequate parenting skills . . . .

Tex. Fam. Code Ann. § 263.307(b). The Texas Supreme Court has cited Section 263.307 of the Texas Family Code with approval that its factors be considered in termination cases in determining the  best  interest  of  a  child  and  the  willingness  of  a  child's  family  to  effect  positive  changes. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

A nonexclusive list of factors relevant to a review of a finding on the best interest of the child ⁽²⁾ was previously set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (footnotes omitted):

(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the

plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.

Id. Some of the Holley factors overlap with the statutory considerations; some also overlap with evidence supporting predicate grounds for termination. See In re C.E.K., 214 S.W.3d 492, 503 (Tex. App.--Dallas 2006, no pet.).

Before A.W.'s birth--during a six-month period lasting from June until November 2006--Wardsworth had been incarcerated. He was again incarcerated May 29, 2007. The final hearing on termination was held August 31, 2007. ⁽³⁾   

As relevant to this case, there is evidence that Wardsworth was aware of an applicable service plan and its requirements, as prescribed by the Texas Department of Child Protective Services; that Wardsworth had not completed any of the requirements; that he had not contacted the caseworker assigned to the case; and that the contact information for the current caseworker, Lee Sexton, was the same as that for her predecessor. Sexton testified that Wardsworth's rights had been terminated to another child for conduct violating Section 161.001(1)(D) and (E). She testified that Wardsworth had visitation opportunities with A.W., but had taken advantage of them only once or twice, and that he had provided no assistance for A.W. while Sexton was assigned to the case.

Court Appointed Special Advocates (CASA) supervisor Kimberly Johnson testified that a hair-follicle test showed that A.W. had cocaine in her system that necessarily came from prenatal exposure, while Wardsworth and the mother were together, and that drug tests performed on Wardsworth and the mother after A.W.'s birth returned positive for cocaine. Johnson testified that she had tried a number of times, in a number of ways, to get in touch with Wardsworth and the mother, but was able to talk to Wardsworth only once and that he showed little interest in A.W. at that time, being more concerned with his own problems.

Wardsworth testified that he had completed all of the requirements of the Department's plan, except for the recommended twice-weekly drug counseling. He testified that he had gone back to jail May 29, 2007, on aggravated assault and aggravated robbery charges and had no contact with anyone thereafter. ⁽⁴⁾ He stated that he had provided A.W. with some clothing but had been told that A.W.'s caretakers were doing fine with finances. Wardsworth testified that he also had a burglary of a habitation charge raised against him and acknowledged that he also had a pending marihuana charge. Wardsworth testified that, after A.W.'s birth, he had gone to Houston for thirty to forty days to train in competitive boxing and had not provided the Department with his contact information while in Houston.

In applying the factors to be considered, we agree that the desires of A.W. cannot be determined because of her extremely young age. The evidence of Wardsworth's repeated incarcerations suggests that he would likely be unable to meet the emotional and physical needs of A.W. now and in the future and that his parenting skills are seriously suspect. The same factors tend to be established by the evidence that Wardsworth had not visited A.W. for seven months at the time of trial, and not at all since she was about two months old. The effect of this is somewhat ameliorated by the fact that, for the last three of those seven months, Wardsworth had been jailed and thus unable to visit. His parenting abilities are doubtful, based on evidence of his repeated drug use and incarcerations, the termination of his rights to his older child, and his failure either before or after that termination to complete the various programs provided by the Department and made part of his service plan. See In re S.K.A., 236 S.W.3d 875 (Tex. App.--Texarkana 2007, pet. filed). The record demonstrates a history of Wardsworth's involvement with illegal substances. The Department provided testimony about foster care placement for A.W. and that she was thriving in that environment.

Wardsworth also testified that, as an inmate after May 29, his ability to contact the Department was severely compromised because he was subject to stringent limitations on telephone use and the lack of a telephone directory or a person willing to look up an address for him. Thus, he had viable explanations for his failure to stay in contact or take classes after May 29. Wardsworth also testified that he wanted to keep A.W., at least with other family members, if not personally.

Nevertheless, the weight of the evidence as set out above is in favor of the Department's position. Reviewing all the evidence in a light most favorable to the finding, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that its finding was true; thus, the evidence is legally sufficient. See J.F.C., 96 S.W.3d at 266. We also conclude the evidence is factually sufficient, that, based on proof of the factors set out above, the evidence is sufficient to produce in the mind of a rational fact-finder a firm belief or conviction that the best interest of A.W. lay in the termination of Wardsworth's parental rights.

We affirm the judgment of termination.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 1, 2008

Date Decided: February 12, 2008

1. In addition to the best-interest finding, the termination was based on findings that Wardsworth had transgressed three different subsections of Section 161.001(1) of the Texas Family Code: subsection (E), addressing conduct endangering A.W.; subsection (M), addressing a previous termination of his rights to another child; and subsection (N) addressing constructive abandonment of A.W. See Tex. Fam. Code Ann. § 161.001(1)(E), (M), & (N) (Vernon Supp. 2007). Wardsworth complains on appeal that the evidence is insufficient to support the finding that he violated subsections (E) and (N) and that it is insufficient to support the finding that termination was in A.W.'s best interest. He does not challenge the remaining ground of termination, which is under subsection (M). See Tex. Fam. Code Ann. § 161.001(1)(M). Since multiple grounds for termination were found by the trial court and at least one has not been challenged on appeal, we will affirm based on any one ground because only one predicate violation under Section 161.001(1) is necessary to a termination judgment. See In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.--Waco 2006, pet. denied); In re S.F., 32 S.W.3d 318, 320 (Tex. App.--San Antonio 2000, no pet.). As one ground is sufficient to support the judgment for termination, we overrule Wardsworth's first and second issues on appeal and focus instead on only the best-interest challenge. See In re T.S.C., No. 10-06-00366-CV, 2007 Tex. App. LEXIS 3390 (Tex. App.--Waco May 2, 2007, no pet.) (mem. op.). Also, because the finding under subsection (M) was not mentioned in Wardsworth's statement of  points  on  appeal,  we  could  not  consider  the  issue  in  any  event.  See  Tex.  Fam.  Code Ann. § 263.405(I) (Vernon Supp. 2007).

2. Although the trial court found that termination was in A.W.'s best interest, there was no request for findings of fact setting out specific factual bases to support the ruling.

3. Wardsworth and A.W.'s mother also had an older child together. Their rights to that child had previously been terminated.

4. The termination hearing was conducted August 31, 2007.