in the Interest of M.C. and D.K., Children ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-408-CV
IN THE INTEREST OF M.C.
AND D.K., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Gaylene C. appeals the termination of her parental rights to her
children, M.C. and D.K. Appellant Kent M. appeals the termination of his
parental rights to his daughter, M.C. Both Gaylene and Kent challenge the
sufficiency of the evidence to support the trial court’s family code section
161.001(1) and 161.001(2) findings in the termination order. We will affirm.
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… See T EX. R. A PP. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Gaylene is the mother of five-year-old M.C., three-year-old D.K., and three
older children. Gaylene left M.C. and D.K. with their grandmother at some
point. The grandmother moved to California a few months later and left the
children with Janelle S., the children’s aunt. Janelle had previously been
awarded permanent managing conservatorship of Gaylene’s three older children.
On July 10, 2006, Janelle requested that CPS take custody of M.C. and
D.K. because she was no longer able or willing to care for them. CPS
investigator Cathy Lee did not locate Gaylene until sometime around August 10,
2006. Gaylene initially told Lee that she did not know where M.C. and D.K.
were, but she later said that she knew they were with her sister. CPS removed
the children from Janelle’s care on August 21, 2006.
Lee had concerns about illegal drug use by Gaylene. When Lee located
Gaylene on August 10, 2006, Gaylene said that she had used crack cocaine the
previous day. Gaylene took a drug test at the request of Appellee Texas
Department of Family and Protective Services (“TDFPS”) on or about May 21,
2007, and admitted to TDFPS that she had used cocaine. At trial, Gaylene
agreed that although she testified at a previous hearing that she had not used
drugs for three months, she took a drug test and was “nowhere near clean.”
Gaylene testified that she never used drugs “around [her] kids or in front of
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[her] kids,” but that she “might have” been under the influence of illegal drugs
while she kept her children. When asked when she last used drugs, Gaylene
answered, “It’s been a month for sure.” Gaylene did not complete before trial
the service plan that TDFPS prepared for her.
Kent is the alleged biological father of M.C. He was incarcerated when
Janelle called CPS in July 2006. CPS did not consider placing the children with
Kent after the children’s removal because he had just been released from jail
and was waiting to return, possibly for a parole violation.
According to Kent, Gaylene does not do drugs around her children, but
“she probably has a drug problem” and she “needs help for drugs.” Kent used
illegal drugs in the past, but he testified that he had not used any since his
release from jail. He lived with Gaylene before his incarceration, and he intends
to live with her in the future. Kent has multiple convictions for delivery of a
controlled substance, one conviction for possession of a controlled substance
(for which he is currently on parole), and a misdemeanor conviction for
unlawfully carrying a weapon. The controlled substance involved in these
convictions was cocaine. Kent did not complete before trial the service plan
that TDFPS prepared for him.
The trial court granted TDFPS’s petition to terminate the parental rights
of Gaylene and Kent. The termination order reflects that the trial court found
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by clear and convincing evidence that Gaylene knowingly placed or knowingly
allowed M.C. and D.K. to remain in conditions or surroundings which
endangered their physical or emotional well-being; engaged in conduct or
knowingly placed M.C. and D.K. with persons who engaged in conduct which
endangered their physical or emotional well-being; and constructively
abandoned M.C. and D.K. See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E), & (N)
(Vernon Supp. 2007). The trial court found that Kent knowingly placed or
knowingly allowed M.C. to remain in conditions or surroundings which
endangered her physical or emotional well-being; engaged in conduct or
knowingly placed M.C. with persons who engaged in conduct which
endangered her physical or emotional well-being; and constructively abandoned
M.C. See id. The trial court further found that termination of Gaylene’s and
Kent’s parental rights was in M.C.’s and D.K.’s best interest. 2
III. E VIDENTIARY S UFFICIENCY
Both Gaylene and Kent argue that the evidence is legally and factually
insufficient to support the trial court’s family code section 161.001(1) findings,
and Kent challenges the legal and factual sufficiency of the evidence supporting
2
… The trial court also terminated the parental rights of Darin Keith, the
adjudicated biological father of D.K., and Jimmy Whitehead, the presumed
father of M.C. and D.K.
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the trial court’s best interest finding as to M.C.; Gaylene challenges only the
factual sufficiency of the trial court’s best interest finding.3
A. Standards of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). “While parental rights are of constitutional magnitude, they are
not absolute. Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that
right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the
State seeks not just to limit parental rights but to end them permanently—to
divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit. T EX.
F AM. C ODE A NN . § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
3
… TDFPS initially argues that we should overrule Gaylene’s first issue
because it is multifarious. Gaylene’s first issue is organized in such a way that
her specific contentions challenging the termination order are clear and
unambiguous. We thus decline to overrule her first issue for allegedly being
multifarious.
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1985). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at
20–21; In re E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no
pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
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. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as the “measure or degree of proof that will
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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.” T EX. F AM. C ODE A NN. § 101.007.
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
We must also disregard all evidence that a reasonable fact-finder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could, and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
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In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the verdict with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the parent violated the relevant section 161.001(1)
finding and that the termination of the parent’s parental rights would be in the
best interest of the child. C.H., 89 S.W.3d at 28. 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 in the truth of its finding,
then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Sufficient Evidence—Section 161.001(1)(D) and (E) Findings
The trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child. T EX. F AM. C ODE A NN.
§ 161.001(1)(D). Endangerment is defined as exposing to loss or injury, to
jeopardize. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under subsection (D), it is necessary to examine evidence related to
the environment of the child to determine if the environment was the source of
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endangerment to the child’s physical or emotional well-being. In re D.T., 34
S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet. denied). To support a
finding of endangerment, the parent’s conduct does not necessarily have to be
directed at the child, and the child is not required to suffer injury. Boyd, 727
S.W.2d at 533.
The trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has engaged in conduct
or knowingly placed the child with persons who engaged in conduct that
endangers the physical or emotional well-being of the child. T EX. F AM. C ODE
A NN. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether
evidence exists that the endangerment of the child’s physical or emotional well-
being was the direct result of the parent’s conduct, including acts, omissions,
and failures to act. J.T.G., 121 S.W.3d at 125. 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. Id.; D.T.,
34 S.W.3d at 634.
The specific danger to the child’s well-being may be inferred from parental
misconduct alone, including conduct that subjects the child to a life of
uncertainty and instability. Boyd, 727 S.W.2d at 533. A parent’s decision to
engage in illegal drug use during the pendency of a termination suit, when the
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parent is at risk of losing a child, supports a finding that the parent engaged in
conduct that endangered the child’s physical or emotional well-being. In re
J.A., No. 02-05-00454-CV, 2006 WL 3114434, at *5 (Tex. App.—Fort Worth
Nov. 2, 2006, no pet.) (mem. op.). Conduct that subjects a child to a life of
uncertainty and instability also endangers the child’s physical and emotional
well-being. See In re S.D., 980 S.W .2d 758, 763 (Tex. App.—San Antonio
1998, pet denied).
Because the evidence pertaining to subsections 161.001(1)(D) and (E) is
interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,
439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126. The
evidence demonstrates that Gaylene has engaged in a deliberate, continuing
course of illegal drug use, that Gaylene has a drug problem, and that Gaylene’s
and Kent’s acts and omissions have subjected M.C. and D.K. to a life of
uncertainty and instability. Gaylene admitted to using illegal drugs—crack
cocaine—on three specific, different occasions: on or about August 9, 2006,
the day before CPS removed M.C. and D.K. from Janelle’s possession; at some
point near the final hearing before trial; and at least a month before the final
trial, which was in November 2007.4 Her use of illegal drugs has not been
4
… The attorney ad-litem for the children even expressed concern that
Gaylene was under the influence of some illegal substance at the time of trial.
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limited to these three instances. According to Gaylene, “there is a lot of things
that I do that I don’t do when I have my [children].” Although Gaylene testified
that she never used drugs in front of M.C. and D.K., she tacitly acknowledged
using illegal drugs while caring for them when she explained that she “might
have” been under the influence of illegal drugs at some point when she had
them. Gaylene left M.C. and D.K. with her mother, who left the children with
Janelle, who was unable to continue caring for them and called CPS. Gaylene
enrolled in an outpatient drug rehabilitation program as part of her court-ordered
services but stopped attending after a few weeks.
Kent knows that Gaylene uses illegal drugs. He testified, however, that
she does not do drugs in front of her children and, furthermore, that she
“probably has a drug problem” when she “leave[s]” her children with her
mother, which seems to have occurred on more than one occasion. Kent lived
with Gaylene before his incarceration, he allowed M.C. to remain in Gaylene’s
care despite his knowledge of her continued, illegal drug use, and he intends to
live with Gaylene in the future. Kent was incarcerated when Janelle made her
CPS report in July 2006, and at the time of trial, he was on parole for his
possession of a controlled substance conviction.
Viewing the evidence in the light most favorable to the finding and
judgment, we hold that a fact-finder could reasonably form a firm belief or
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conviction that Gaylene’s and Kent’s acts, omissions, or failures to act
endangered M.C.’s and D.K.’s physical or emotional well-being. See J.P.B.,
180 S.W.3d at 573. Moreover, on the entire record, a fact-finder could
reasonably form a firm conviction or belief that Gaylene and Kent’s acts or
omissions violated by clear and convincing evidence the trial court’s section
161.001(1)(D) or (E) findings; the disputed evidence that the trial court could
not have credited in favor of its section 161.001(1)(D) or (E)
findings—consisting primarily of Gaylene’s and Kent’s testimony that they
completed parts of the service plan and that Gaylene does not do illegal drugs
in the presence of M.C. and D.K.—is not so significant that the trial court could
not reasonably have formed a firm belief or conviction in the truth of its
findings. See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28. The
evidence is thus legally and factually sufficient to support the trial court’s family
code section 161.001(1)(D) or (E) findings. Because we have held that the
evidence is legally and factually sufficient to support the trial court’s section
161.001(1)(D) or (E) findings, we need not determine whether the evidence is
sufficient to support the trial court’s section 161.001(1)(N) finding. See J.L.,
163 S.W.3d at 84 (stating that Petitioner must establish only one ground listed
under subsection 161.001(1)). W e overrule Gaylene’s first issue and Kent’s
first issue.
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C. Sufficient Evidence—Best Interest Finding
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a).
There is also a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include:
(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 individuals 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 which 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.
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Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are
not exhaustive; some listed factors may be inapplicable to some cases; other
factors not on the list may also be considered when appropriate. C.H., 89
S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the best
interest of the child. Id. On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
Here, CPS caseworker Scott Flanigan testified that M.C. and D.K. were
together in a “very good” foster home and that termination of Gaylene’s and
Kent’s parental rights was in the children’s best interest. Considering the
evidence that Gaylene uses illegal drugs, that she used illegal drugs while caring
for M.C. and D.K., that she has not resolved her drug problem since CPS
removed M.C. and D.K., that she leaves the children with her mother or some
other person to care for them when she uses illegal drugs, and that she failed
to complete her service plan and demonstrate an ability to provide a stable
home for the children, factors including the emotional or physical danger to the
children, the emotional and physical needs of the children, and Gaylene’s acts
or omissions as a parent support the trial court’s finding that termination of
Gaylene’s parental rights to M.C. and D.K. is in their best interest.
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As for Kent, Flanigan testified that he had concerns about returning M.C.
to Kent because Kent does not have his own place of residence, he did not
complete his service plan, and he will be on parole for another year. Kent
testified that he intended to live with Gaylene in the future, which raises the
possibility that the children would be passed off again to Gaylene’s mother or
some other individual due to Gaylene’s continued drug use. Kent also lived
with Gaylene before his incarceration, yet he allowed M.C. to remain in
Gaylene’s care knowing that she used illegal drugs. He also has multiple
convictions involving controlled substances. Factors including the stability of
Kent’s home, his acts or omissions as a parent, and the emotional and physical
danger to the children now and in the future support the trial court’s finding
that termination of Kent’s parental rights to M.C. is in M.C.’s best interest.
Utilizing the appropriate standards of review, we hold that the evidence
is legally and factually sufficient to support the trial court’s finding that
termination of Gaylene’s and Kent’s parental rights to M.C. and D.K. is in the
children’s best interest. See H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d
at 573; C.H., 89 S.W.3d at 28. We overrule Gaylene’s second issue and
Kent’s second issue.
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IV. C ONCLUSION
Having overruled each of Gaylene’s and Kent’s issues, we affirm the trial
court’s judgment terminating Gaylene’s parental rights to M.C. and D.K. and
terminating Kent’s parental rights to M.C.
DIXON W. HOLMAN
JUSTICE
PANEL A: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.
DELIVERED: June 12, 2008
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