in the Interest of A.S., a Child ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00076-CV
IN THE INTEREST OF A.S., A CHILD,
From the 52nd District Court
Coryell County, Texas
Trial Court No. CVPC-07-37926
MEMORANDUM OPINION
Following a bench trial, the court signed an order terminating the parental rights
of Tashawna and Antoine to their daughter A.S. Tashawna and Antoine both appeal.
We will affirm the termination order.
The natural right that exists between parents and their children is one of
constitutional dimension. In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994). A parent’s
right to “the companionship, care, custody and management” of his or her children is a
constitutional interest “far more precious than any property right.” Santosky v. Kramer,
455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599 (1982) (quoting Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972)). Therefore, in a case
terminating parental rights, the proceedings are strictly scrutinized, and the involuntary
termination statutes are strictly construed in favor of the parent. Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).
Termination of parental rights is a drastic remedy and is of such weight and
gravity that due process requires the petitioner to justify termination by “clear and
convincing evidence.” Spangler v. Tex. Dep’t of Prot. & Reg. Servs., 962 S.W.2d 253, 256
(Tex. App.—Waco 1998, no pet.). This standard is defined as “that measure or degree of
proof which 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. In a proceeding to terminate
the parent-child relationship brought under section 161.001 of the Texas Family Code,
the movant must establish by clear and convincing evidence two elements: (1) one or
more acts or omissions enumerated under subsection (1) of section 161.001 (termed a
predicate violation); and (2) that termination is in the best interest of the child. TEX.
FAM. CODE ANN. § 161.001 (Vernon 2009); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.
App.—Waco 2002, pet. denied). The factfinder must find that both elements are
established by clear and convincing evidence, and proof of one element does not relieve
the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370
(Tex. 1976); Swate, 72 S.W.3d at 766.
Tashawna’s Issues
The trial court found two predicate violations under section 161.001(1) for
Tashawna: (1) that she engaged in conduct or knowingly placed A.S. with persons who
engaged in conduct that endangered the physical or emotional well-being of the child
(see TEX. FAM. CODE ANN. § 161.001(1)(E)); and (2) that she knowingly engaged in
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criminal conduct that resulted in her conviction of an offense and confinement or
imprisonment and inability to care for A.S. for not less than two years from the date of
filing the petition. See id. § 161.001(1)(Q). In two issues, Tashawna challenges the legal
and factual sufficiency of the evidence to support these findings.
Both legal and factual sufficiency reviews in termination cases must take into
consideration whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the matter on which the petitioner bears the
burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal
sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual
sufficiency review).
In a legal sufficiency review, a court should look at all the evidence in the
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. To give appropriate deference to the factfinder’s conclusions and the
role of a court conducting a legal sufficiency review, looking at the
evidence in the light most favorable to the judgment means that a
reviewing court must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. A corollary to
this requirement is that a court should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been
incredible.
J.F.C., 96 S.W.3d at 266.
In conducting a factual sufficiency review, “a court of appeals must give due
consideration to evidence that the factfinder could reasonably have found to be clear
and convincing.” Id.
[T]he inquiry must be “whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the
State’s allegations.” A court of appeals should consider whether disputed
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evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. 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, then the evidence is
factually insufficient.
Id. at 266-67 (footnotes and citations omitted).
We begin by addressing Tashawna’s challenge to the legal and factual sufficiency
of the evidence to support the court’s finding under subsection 161.001(1)(E).
Subsection E states that the court may order termination of the parent-child relationship
if the court finds by clear and convincing evidence that the parent has engaged in
conduct or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child. TEX. FAM. CODE ANN. §
161.001(1)(E).
To endanger means to expose to loss or injury, to jeopardize. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269
(Tex. 1996). Under subsection E, the relevant inquiry is whether there was evidence
presented that the endangerment of the child’s well-being was the direct result of the
parent’s conduct, including acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d
215, 222 (Tex. App.—Fort Worth 2004, pet. denied); Dupree v. Tex. Dep’t of Prot. & Reg.
Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ). 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. In re S.A.P., 169
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S.W.3d 685, 702 (Tex. App.—Waco 2005, no pet.); In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2003, no pet.).
While “endanger” means more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment, it is not necessary that the
parent’s conduct be directed at the child or that the child actually suffers injury. Boyd,
727 S.W.2d at 533. Endangerment may include what a parent does both before and after
birth of a child. In re U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th Dist.] 2003,
pet. denied); accord Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.]
1997, no writ).
In this case, Tashawna testified that on February 25, 2007, she, Antoine, and
another of their children came to Texas from California. At that time, there was an open
CPS case in California, and CPS in California was attempting to locate Tashawna. On
March 24, 2007, the child was killed in Texas. Antoine pleaded guilty to the murder of
the child and was sentenced to life in prison. Tashawna was convicted of the offense of
injury to a child in connection with the child’s death and was assessed a punishment of
thirty years’ imprisonment. On December 13, 2007, approximately two months before
her conviction, Tashawna was taken from jail to the hospital, where she gave birth to
A.S. A.S. was immediately removed from Tashawna’s care at the hospital.
Tashawna argues that the evidence is legally and factually insufficient to support
the court’s finding under subsection E because the death of her other child was a single
incident, rather than a course of conduct that endangered the well-being of A.S.
However, the above evidence is legally and factually sufficient for a reasonable
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factfinder to form a “firm belief or conviction” that Tashawna engaged not just in a
single act or omission that endangered A.S.’s physical or emotional well-being, but in a
course of conduct that endangered A.S.’s physical or emotional well-being.
While mere imprisonment, standing alone, does not constitute conduct
endangering the emotional or physical well-being of a child, it may contribute to a
finding that the parent engaged in a course of conduct endangering the child and
supports termination of parental rights under subsection E. Boyd, 727 S.W.2d at 533-34.
Furthermore, although Tashawna complains in her brief that there was no testimony at
the hearing that A.S. had been conceived at the time of the other child’s death, she
acknowledges that there is evidence that A.S. was born only eight months and nineteen
days after the death of the other child. A parent’s conduct with regard to other children
can be used to support a finding of endangerment even against a child who was not yet
born at the time of the conduct. In re D.T., 34 S.W.3d 625, 636-37 (Tex. App.—Fort
Worth 2000, pet. denied); see Clark v. Clark, 705 S.W.2d 218, 219 (Tex. App.—Dallas 1985,
writ dism’d) (father’s conduct in killing stepdaughter before conception of child
considered as evidence of conduct which endangered the physical or emotional well-
being of child). Thus, we overrule Tashawna’s first issue.
Because only one predicate violation under section 161.001(1) is necessary to
support a termination judgment, we need not address Tashawna’s second issue. See
TEX. R. APP. P. 47.1; In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet.
denied).
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Antoine’s Issue
In his sole issue, Antoine contends that the trial court erred in appointing the
Department of Family and Protective Services (DFPS) as permanent managing
conservator of A.S. when a qualified relative was willing and able to care for the child.
However, Antoine lacks standing to assert this complaint because he does not contest
the termination of his parental rights.
Because Antoine did not appeal the trial court’s findings terminating his parental
relationship with A.S., he is bound by those findings. Antoine has thus become a
former parent with no legal rights with respect to A.S. See TEX. FAM. CODE ANN. §
161.206(b) (Vernon 2009) (“[A]n order terminating the parent-child relationship divests
the parent and the child of all legal rights and duties with respect to each other, except
that the child retains the right to inherit from and through the parent unless the court
otherwise provides.”). Having no legal rights with respect to A.S., Antoine has no
standing to attack that portion of the termination order appointing DFPS as permanent
managing conservator of A.S. See In re H.M.M., 230 S.W.3d 204, 204-05 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (holding mother did not have standing to appeal
post-termination custody decision when she did not appeal the termination of her
parental rights); see also In re R.A., No. 07-08-0084-CV, 2009 WL 77853, at *2 (Tex. App.—
Amarillo Jan. 13, 2009, no pet.) (mem. op.); In re S.M.C., No. 07-04-0429-CV, 2005 WL
441538, at *1 (Tex. App.—Amarillo Feb. 25, 2005, no pet.) (mem. op.). We overrule
Antoine’s sole issue.
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Conclusion
We affirm the termination order.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the
trial court’s judgment. He does not join the opinion, and disagrees with the statement
that Section 161.001(1)(E) must, in all cases, be based on more than a single act or
omission. I could imagine single acts sufficient for termination. A separate opinion will
not issue.)
Affirmed
Opinion delivered and filed October 28, 2009
[CV06]
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