in the Interest of S.I.-M.G. and S.B.G.-R., the Children ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00141-CV
In the Interest of S.I.-M.G. and § From the 431st District Court
S.B.G.-R., the Children
§ of Denton County (2010-11061-16)
§ November 15, 2012
§ Opinion by Justice Walker
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Sue Walker
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00141-CV
IN THE INTEREST OF S.I.-M.G.
AND S.B.G.-R., THE CHILDREN
----------
FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Mother appeals the judgment following a jury trial in which her
parental rights to S.I.-M.G. and S.B.G.-R. were terminated. In five issues, Mother
argues that the trial court erred by failing to include her proposed jury instruction
to disregard the wealth of the parties, that the trial court erred by including jury
questions on section 161.001(1)(D) and (E) endangerment grounds because
1
See Tex. R. App. P. 47.4.
2
there was no evidence to support them, that there was no evidence that Mother
had failed to complete the services on her service plan, and that the attorney ad
litem had failed to present S.I.-M.G.’s legal position to the trial court. We will
affirm.
II. FACTUAL BACKGROUND
The voluminous reporter’s record, which includes over 2,000 pages of
testimony and six volumes of exhibits, reveals a history of drug abuse that has,
unfortunately, plagued Mother and her family for decades. Because the appeal
can be disposed of based on Mother’s conduct and because the sufficiency of
the evidence to support the best interest finding is not challenged, the facts set
forth below focus on Mother’s conduct.
A. Mother’s Upbringing
Mother and her twin brother started living with their grandmother when
they were four months old because their mother had drug and alcohol issues,
and their father had drug issues. After Mother’s grandmother died when Mother
was a teenager, Mother lived with her uncle off and on. Mother attempted
suicide around age sixteen. Mother admitted to her uncle that she had used
drugs. The uncle testified that Mother’s mother’s addiction problems had
affected her ability to parent Mother and that he was fearful that Mother would
experience the same problems because of her own addiction.
3
B. Mother’s Relationship with Paul and Her Criminal Background
Mother dated Paul for a year before she became pregnant with S.I.-M.G. at
age eighteen. Paul was verbally and emotionally abusive to Mother after he
started taking methamphetamine and abusing nitrous oxide. Paul told Mother
that she had to steal money for him. Mother feared Paul because he had
previously hurt her ―extremely badly,‖ requiring her to be sent to the hospital. So
Mother wielded a pocket knife that Paul had provided and robbed a woman with
her seven-year-old son at an ATM. Mother also robbed an older woman at
NorthPark Mall. Mother was arrested for two counts of aggravated robbery and
placed in jail.2
C. First Removal of S.I.-M.G.
While Mother was in jail, Steve Buchanan, a detective with the Denton
Police Department who investigated drug-endangered children cases, performed
a welfare check at S.I.-M.G.’s grandmother’s home on January 28, 2008,3
because someone had called and reported that S.I.-M.G. had missed school for
a few days. The grandmother told him that she did not have transportation to
2
Prior to her arrest on the two aggravated robbery charges, Mother had
been convicted of possession of marijuana and DWI.
3
Detective Buchanan noted that a welfare concern call had also come in on
January 24, 2008.
4
take S.I.-M.G. to school and that she was caring for S.I.-M.G. because Mother
was in jail.4
Detective Buchanan testified that he went back to S.I.-M.G.’s
grandmother’s house on February 19, 2008, because he had received a CPS
case on S.I.-M.G. and the CPS report contained allegations that the grandmother
was a prescription drug addict. The grandmother was talking very fast and was
jumping from subject to subject without being asked any questions; she was
visibly under the influence of drugs. The grandmother told Detective Buchanan
that she was taking Lortab and hydrocodone, and he was able to view the
bottles. Each of the two bottles had been filled seven days prior and contained
180 pills; out of the total of 360 pills, 50 remained.
The grandmother consented to a search of the house, which turned up a
crack pipe, a green baggie with some white residue, and an empty syringe. The
crack pipe and the green baggie were located in the master bedroom, which the
grandmother said that she shared with S.I.-M.G. The location where the crack
pipe was found was not far from a ―play‖ skillet and was within the child’s reach.
The crack pipe tested positive for cocaine.
CPS made the decision to remove S.I.-M.G. from the grandmother in
February 2008 because of the condition of the grandmother and because of the
crack pipe and baggie that were found in the house and readily accessible to
4
The grandmother told Detective Buchanan that she had been caring for
S.I.-M.G. since December 2007 because Mother was in jail on a robbery charge.
5
S.I.-M.G. Detective Buchanan testified that a hair follicle test on S.I.-M.G. came
back positive for cocaine. Detective Buchanan later obtained two warrants for
the grandmother’s arrest for possession of a controlled substance under a gram
and endangering a child, and the grandmother was ultimately arrested.
D. Mother Receives Probation and the Department
Returns S.I.-M.G. to Mother
On June 12, 2008, Mother was placed on probation for ten years. After
Mother was placed on probation, she diligently worked her service plan, and S.I.-
M.G. was returned to her.
E. Police Arrest Mother’s Boyfriend Chris in Possession of Heroin
Sergeant Brad Curtis, who was sergeant over special operations including
narcotics, testified that on September 10, 2010, he had received information
regarding an individual who was possibly trafficking narcotics at the Foxfire
Apartments in the Bell Avenue area. Sergeant Curtis found Chris, Mother’s
boyfriend, ―completely out of it‖; he almost fell while walking into the parking lot.
Sergeant Curtis found a straw and a baggie with a black tar substance in
Chris’s front pocket. More drug paraphernalia and black tar heroin were found in
Chris’s backpack. The total black tar heroin was twenty-three grams, which had
an approximate street value of $2,300 and was the largest amount that Sergeant
Curtis had obtained at one time. Sergeant Curtis testified that the backpack that
Chris was carrying on the day in question was one that could have been easily
6
opened by a child. A purse found in the backpack contained three prescription
bottles labeled as belonging to Mother.
Sergeant Curtis spoke with Mother at her apartment, and she said that she
had no knowledge about what was taking place. Sergeant Curtis said that
Mother was cooperative and that her reaction regarding Chris was, appropriately,
anger.
F. Second Removal of S.I.-M.G.
Jennifer Matthews, an investigator with the Department of Family and
Protective Services, testified that after a referral for drug abuse came in to the
Department, she went on September 13, 2010, to the school to speak with S.I.-
M.G., who was seven. S.I.-M.G. said that Mother, her Uncle Jacob, and her
grandmother lived in her home; her ―dad‖ Chris, who was Mother’s paramour,
was no longer living with them because he had been arrested. S.I.-M.G. did not
know what drugs were; she said that Chris had been arrested for ―heritage‖ but
did not know what that was. S.I.-M.G. said that they do not have many friends
that come to the house; Mother usually lays on the couch most of the time.
Matthews attempted to talk to Mother, but she was not home. Matthews
received a phone call the following day from the grandmother; Mother was at the
doctor being treated for complications related to her pregnancy. 5 When
Matthews spoke with Mother on September 14, 2010, the first thing Mother said
5
After Chris was arrested, Mother decided that she could not do drugs
anymore and tried to quit, which caused a ―near miscarriage.‖
7
when Matthews arrived at the apartment was that she had left her purse at the
hospital and did not have her medicine bottles; Matthews thought this was odd
because she had not asked about Mother’s purse or medicine bottles.6
Mother continued to volunteer information, including that she needed to go
see her therapist and that she did not want Matthews to talk to her probation
officer or CASA because they would be upset that CPS was involved in her life
again. Matthews testified that Mother’s drug test from the previous night was
positive for amphetamines (in addition to positive for opiates, which she had a
prescription for), but Mother claimed that she had never done speed and denied
having a drug history. Mother said that she was taking Xanax for anxiety and
Lortab (hydrocodone) for a back injury that had occurred seven years earlier.
Mother’s hydrocodone prescription allowed her to take two tablets every four
hours, but the prescription was only for twenty pills. Mother admitted that she
had started using more than she should have of the hydrocodone and Xanax.
Although Mother knew before 2010 that Chris was taking hydrocodone for
an injury and kidney stones, and although Mother had suspicions that Chris had
used drugs, Mother said that there was never any blatant proof of illegal drug
use. Because Chris had never used heroin in Mother’s presence, Mother did not
believe that Chris was a heroin addict. Mother said that Chris’s arrest was a
misunderstanding and that the backpack belonged to Chris’s brother. But Mother
6
Matthews later learned from the hospital that Mother did not leave her
purse there; she left her discharge papers.
8
indicated that she understood that Chris could not be around the family and was
not to have contact with S.I.-M.G.
The grandmother took a drug test that was positive for opiates because
she was on hydrocodone and Xanax, just like Mother. Fifteen days after the
grandmother’s 120-count bottle of hydrocodone was filled, it contained only eight
pills, even though it should have contained approximately sixty. The
grandmother said that she put them in a separate container. Mother and the
grandmother declined to sign a medical release that would have allowed
Matthews to check into their prescriptions.
The next day, on September 15, 2010, Matthews observed Chris leave the
apartment; Mother later said that he had been there for only a few seconds. The
following day, on September 16, 2010, the Department requested and received
custody of S.I.-M.G. S.I.-M.G. was removed because Chris had been arrested
for drug use, Chris had not been kept away from S.I.-M.G. as set forth in the
safety plan, and Mother and grandmother were overtaking their hydrocodone
medication. Matthews testified that Mother’s and grandmother’s overtaking of
hydrocodone affected their brains and the way they paid attention, which could
endanger a child. After a temporary placement, S.I.-M.G. was placed with the
foster family who had cared for her after she was removed from grandmother’s
home in 2008.
9
G. Department Removes S.B.G.-R. After She Is Born Addicted
On September 19, 2010, Mother went into labor at 34.5 weeks and
delivered S.B.G.-R.7 Mother warned the nurses that S.B.G.-R. would be born
addicted, and the Department ultimately received a referral because S.B.G.-R.
tested positive for benzodiazepine and opiates. Angela Evans, a nurse in the
NICU at Presbyterian Hospital of Denton, testified that she cared for S.B.G.-R.
after she was born addicted to opiates and ―benzoids.‖ S.B.G.-R.’s withdrawal
score was twenty-two, which was a very high score; Evans had never seen a
score that high before. S.B.G.-R.’s withdrawal symptoms included a very irritable
cry; stiffness in her lower legs; jitteriness; an inability to sleep for three hours
between feedings; trouble eating;8 loose, watery stools; and emesis (vomiting).
S.B.G.-R. received methadone orally every six hours to help with the withdrawal
symptoms. S.B.G.-R. remained in the NICU for approximately five weeks. Upon
her discharge, S.B.G.-R. was placed with Chris’s parents and continued on
Phenobarbital to help with the remaining withdrawal symptoms, which included
irritability.
7
S.B.G.-R. was born premature but did not experience symptoms of
premature birth.
8
There was conflicting testimony on this symptom: Matthews listed
―trouble eating‖ as one of S.B.G.-R.’s withdrawal symptoms, but Evans said that
S.B.G.-R. was eating well.
10
H. Mother’s Drug Evaluation at First Step
Cheryl Crosley-Culberson, the clinical director with First Step Denton
County Outreach, testified that Mother underwent an evaluation on October 7,
2010, and told her that she had started drinking alcohol at age sixteen but had
not consumed alcohol since 2009, other than social, occasional usage. Mother
told Crosley-Culberson that her first and last use of methamphetamine occurred
at age twenty-four and was experimental. Mother had experimented once with
the following drugs: ecstasy, marijuana, cocaine, LSD, and heroin. Mother listed
that she was taking ten to twenty-five milligrams of Narcan, an opiate, on a daily
basis for back pain and that she was taking Zantac and Celexa. Crosley-
Culberson testified that Narcan is a highly addictive drug. Mother did not tell
Crosley-Culberson that she had recently delivered a child on September 19,
2010.9 Based on the information received, Mother’s diagnostic impression was
cocaine abuse and heroin abuse. Even though Mother had noted only
―experimental‖ use of these drugs, Crosley-Culberson reached that diagnostic
impression after reviewing Mother’s legal history and her current CPS situation.
I. Mother’s Service Plan
Brittany Nichols, a former caseworker with CPS, testified that she went
over the service plan with Mother on October 15, 2010. Mother was allowed a
two-hour weekly visit with the children, and the Department had trouble getting
9
There is no evidence that Mother was directly asked about this fact and
failed to provide the information.
11
her to leave at the end of each visit because she wanted to stay longer. Nichols
noted that this made it difficult on S.I.-M.G.
Nichols tested Mother five times for drugs, and every time she was positive
for opiates and ―benzos.‖ Nichols lost contact with Mother in November 2010
and later learned that she had been arrested on a probation violation for testing
positive for drugs.
J. Mother’s Counseling
Brandy Pounds, a licensed professional counselor who had started seeing
Mother in 2009 while she was on probation with Denton County, testified that
Mother told her in April 2010 that she was pregnant. At that time, Mother’s
situation ―was kind of ambiguous‖; she was struggling in her relationship, 10 with
career choices, and with her family. Mother admitted that she was physically
addicted to Lortab and Xanax. Mother did not want to be on the medications, but
she was fearful of stopping them due to the physical withdrawals that would
occur. Mother was remorseful that S.B.G.-R. was born addicted to drugs.
Mother told Pounds that she did not refill the prescriptions after she gave birth.
During random drug tests, Pounds testified that Mother had tested positive
for hydrocodone. Pounds said that in a drug test, both hydrocodone and heroin
come back as opiates.
10
Mother had told Pounds that Chris’s heroin addiction was a problem in
their relationship and that was why she struggled with staying with him.
12
Mother last saw Pounds in November 2010 because the probation
department notified Pounds that they would no longer fund the counseling. It
surprised Pounds that Mother’s probation was revoked in November 2010 after a
hair strand of Mother’s tested positive for heroin. Pounds testified that ―heroin
wasn’t even an issue we were treating [Mother] for.‖
K. Mother’s Probation Revoked After Positive Drug Test
Mother’s probation was revoked in early November 2010 because Mother
tested positive for heroin. Mother was placed in jail in Dallas County. While she
was in jail, Mother wrote a letter to Chris telling him which drugs he could take
that would not show up on a urinalysis. Mother was later transferred to SAFPF
(substance abuse felony prison facility).
L. Chris’s Second Drug Arrest
Shane Norie, an investigator with the Denton County Sheriff’s Office’s
narcotics unit, testified that he was an undercover officer who worked to
dismantle drug organizations, including the one that Chris was a part of. Norie
arrested Chris on May 19, 2011. Norie testified that Chris had ―a substantial
impact‖ on the Denton area because he was selling quite a bit of black tar heroin.
Norie testified that Chris had sold three grams a week for approximately a month,
then he sold six grams for about two weeks, and then he started selling ounces.
Chris told Norie that he was using heroin daily. Norie testified that in this
scenario, he would find it hard to believe that Mother did not know that Chris was
using heroin. Norie said that if Mother was also on drugs, it might cause her not
13
to recognize that Chris was on drugs. Norie testified that the use of heroin
impacts the ability to parent and is endangering to a child and that a drug
environment filled with addicts is dangerous to a child even if no dope is
present.11
M. Mother’s Time in SAFPF the Halfway House
Mike Storm, a Dallas County adult probation officer, testified that SAFPF is
a treatment center inside the Texas Department of Corrections where people
who have chemical addictions are sent for ninety days to a year. When they are
released, they check into TTC, which is a transitional treatment center for ninety
days. After that, they go into aftercare treatment for six to nine months, during
which time they attend after care twice a week, attend two NA/AA meetings per
week, visit their probation officer twice a month, and attend individual counseling
twice a month.
Storm testified that Mother had entered the Henley Unit on April 1, 2011;
was released on December 28, 2011; and entered the TTC program at the
Salvation Army that same day. While Mother was at the Salvation Army she was
required to maintain her recovery by attending AA/NA meetings, undergoing
counseling, seeking employment, starting a savings account, obtaining a twelve-
step sponsor for her AA/NA meetings, securing housing, and figuring out
11
There was no evidence that a child was exposed to the heroin found on
May 19, 2011; all of the children’s things in the apartment were packed up
because the children had been removed by the Department.
14
transportation. Mother was compliant on the program; she had submitted
urinalyses that were negative.12 While Mother was at the halfway house, she
requested to resume visits with her daughters, but visits were not authorized.
Glenda Hood, who was Mother’s sponsor in her recovery program, testified
that she met with Mother three or four times a week at the Salvation Army.
Mother told Hood that she ―was hooked on prescription pills while she was
pregnant‖ and heroin. Hood testified that Mother is ―doing the program‖ and
―receiving treatment well, and she has some issues that she needs to deal with.‖
According to Hood, Mother is making progress on her decision-making skills, but
the real test will occur when she is released.13
Mother was set to complete the TTC program on March 28, 2012, which
was two weeks after the termination trial. But if Mother was not able to finish the
program’s requirements, her stay could be extended a few days in order to meet
the CJAD14 requirements. After Mother completes the six to nine months in TTC,
she will return to regular case load and report to her probation officer once a
month until 2018.
12
Dea Davis, a CPS caseworker, testified that a month’s worth of clean
drug tests in December 2011 to January 2012 did not show a pattern of being
able to remain drug-free.
13
Crosley-Culberson testified that there is a high probability of relapse
within the first year.
14
Although Storm defined ―CJAD‖ as the ―criminal justice department out of
Austin,‖ it is more commonly known as the Community Justice Assistance
Division.
15
N. Mother’s Testimony
Mother testified that she did not know that she was pregnant for the first
four months of her pregnancy with S.B.G.-R. During the early stages of the
pregnancy, Mother did not talk to her doctor about being dependent on
prescriptions because she did not know that she was pregnant until she was four
months’ pregnant; Mother admitted that her delay caused a lot of problems for
her. Mother also admitted that she had abused drugs for a long time and that
when she learned that she was pregnant with S.B.G.-R., she was scared
because she knew that she was physically addicted to Lortab and Xanax.
Mother testified that she had abused prescription drugs during the first trimester,
which is critical to a baby’s development. Mother expressed having a
―tremendous amount of guilt and shame‖ for putting S.B.G.-R. through withdrawal
because Mother described her own experience of going through withdrawals as
―horrible‖ and stated that she would rather die than go through it again.
O. Disposition
After hearing the evidence above, the jury answered ―yes‖ to every
dispositive question. The trial court thereafter signed a judgment terminating
Mother’s parental rights to S.I.-M.G. and S.B.G.-R. based on Texas Family Code
section 161.001(1)(D), (E), and (O) and section 161.001(2). This appeal
followed.
16
III. BURDEN OF PROOF IN TERMINATION CASES
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 erase 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. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 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 R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, 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 subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
17
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); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort
Worth 2000, pet. denied) (op. on reh’g).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a). Evidence is
clear and convincing if it ―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.
§ 101.007 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
IV. ALLEGED JURY CHARGE ERRORS
A. Evidence Supports Submission of Jury Question on Endangering
Conduct—Section 161.001(1)(E) Grounds
In her fourth issue, Mother argues that the trial court erred by including jury
question six, which asked the jury, ―Do you find by clear and convincing evidence
that the mother, . . . , has engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, which endangered the physical or emotional
well-being of the child [S.B.G.-R.]?‖ Mother’s argument under her fourth issue is
two-fold: she argues (1) that there is no evidence to support the inclusion of jury
18
question six because if a child is born addicted to a controlled substance legally
obtained by prescription, that is not a ground for termination under section
161.001(1)(R) and (2) that there is no evidence to support the inclusion of jury
question six because S.B.G.-R. was removed at birth and was therefore under
the complete care and control of the Department, not Mother.
The standard of review in determining whether sufficient evidence supports
submission of a jury question is different from the standard of review that we
apply in reviewing the sufficiency of the evidence to support a jury’s finding in a
termination trial. The former requires only more than a scintilla of evidence, while
the latter must be supported by clear and convincing evidence.15 Because
Mother challenges the evidence to support submission of jury question 6, not the
sufficiency of the evidence to support the jury’s answer to jury question 6, we
apply the jury charge standard of review.
An objection to the submission of a question in the court’s charge on
evidentiary grounds is a challenge to the legal sufficiency of the evidence.
Elbaor, 845 S.W.2d at 243. We may sustain a legal sufficiency challenge only
when (1) the record discloses a complete absence of evidence of a vital fact; (2)
the court is barred by rules of law or of evidence from giving weight to the only
15
Compare Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992) (stating that
objection to question in jury charge is challenge to legal sufficiency), and Cont’l
Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (stating that
anything more than a scintilla of evidence is legally sufficient to support a jury
finding), with Tex. Fam. Code Ann. §§ 161.001, .206(a) (requiring termination
decisions to be supported by clear and convincing evidence).
19
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact
is no more than a mere scintilla; or (4) the evidence establishes conclusively the
opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,
334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–
63 (1960). In determining whether there is legally sufficient evidence to support
the finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless
a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to
support the finding. Cont’l Coffee Prods. Co., 937 S.W.2d at 450; Leitch v.
Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence
exists if the evidence furnishes some reasonable basis for differing conclusions
by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l
Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
Endanger means to expose to loss or injury or to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). It is not
necessary to establish that a parent intended to endanger a child in order to
support termination of the parent-child relationship under subsection (E). See
M.C., 917 S.W.2d at 270. To prove endangerment under subsection
20
161.001(1)(E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical well-being was the direct result of the
parent’s conduct, including acts, omissions, or failures to act. J.T.G., 121 S.W.3d
at 125. Courts may look to parental conduct both before and after the child’s
birth. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). The conduct need not
occur in the child’s presence, and it may occur ―both before and after the child
has been removed by the Department.‖ Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). Moreover, termination under subsection 161.001(1)(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. Tex. Fam. Code Ann.
§ 161.001(1)(E); J.T.G., 121 S.W.3d at 125.
The specific danger to the child’s well-being may be inferred from parental
misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d
732, 738 (Tex. App.—Fort Worth 2004, pet. denied). As a general rule, conduct
that subjects a child to a life of uncertainty and instability endangers the physical
and emotional well-being of a child. R.W., 129 S.W.3d at 739. The Supreme
Court of Texas has acknowledged that ―a parent’s use of narcotics and its effect
on his or her ability to parent may qualify as an endangering course of conduct.‖
J.O.A., 283 S.W.3d at 345. The Houston First Court of Appeals has explained
that illegal drug use may support termination under section 161.001(1)(E)
because ―it exposes the child to the possibility that the parent may be impaired or
21
imprisoned.‖ Walker, 312 S.W.3d at 617. Additionally, illegal drug use during
pregnancy can support a charge that the mother has engaged in conduct that
endangers the physical and emotional welfare of the child. In re M.L.B., 269
S.W.3d 757, 760 (Tex. App.—Beaumont 2008, no pet.) (citing Dupree v. Tex.
Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas
1995, no writ)). Further, a parent’s decision to engage in illegal drug use during
the pendency of a termination suit, when the 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 M.E.-M.N., 342 S.W.3d 254, 263 (Tex.
App.—Fort Worth 2011, pet. denied).
Turning to an analysis of the evidence to support the submission of jury
question six, we note that the Department abandoned subsection 161.001(1)(R)
as a ground for terminating Mother’s parental rights to S.B.G.-R. and proceeded
under subsection (E), among other grounds. Under subsection (E), as set forth
above, evidence of Mother’s drug use, both overuse of prescription medications
and use of illegal drugs, may be considered in determining whether some
evidence exists to support submission of question six—section 161.001(1)(E)
grounds—to the jury. Compare Tex. Fam. Code Ann. § 161.001(1)(R), with id.
§ 161.001(1)(E); compare also In re P.K.C., No. 02-08-00060-CV, 2009 WL
279337, at *3 (Tex. App.—Fort Worth Feb. 5, 2009, no pet.) (mem. op.)
(considering test results showing that child was born with cocaine in her bodily
fluids in analyzing trial court’s subsection (R) finding), with J.O.A., 283 S.W.3d at
22
345 (holding that ―a parent’s use of narcotics and its effect on his or her ability to
parent may qualify as an endangering course of conduct‖ under subsection (E)
ground), In re T.D.L., No. 02-05-00250-CV, 2006 WL 302126, at *7–8 (Tex.
App.—Feb. 9, 2006, no pet.) (mem. op.) (considering mother’s continuous abuse
of prescription drugs in analyzing trial court’s subsection (E) finding), and In re
M.Y., No. 02-07-00186-CV, 2008 WL 204618, at *10 (Tex. App.—Fort Worth Jan.
24, 2008, no pet.) (mem. op.) (considering mother’s continuous abuse of both
prescription and illegal drugs in analyzing trial court’s subsection (E) finding).16
Because case law provides that, in evaluating a parent’s conduct under
subsection (E), the conduct need not occur in the child’s presence, and it may
occur ―both before and after the child has been removed by the Department,‖ we
need not, as Mother suggests, focus solely on Mother’s conduct after S.B.G.-R.
was removed by the Department. See Walker, 312 S.W.3d at 617. Looking to
Mother’s conduct while she was pregnant with S.B.G.-R., Mother testified that
she had abused Xanax and hydrocodone during the first trimester, which was
during a critical stage of S.B.G.-R.’s development. Although as Mother points
16
From these cases it is clear that prescription drug abuse has been
treated as endangering conduct equal with illegal drug abuse and will support a
finding of endangering conduct under subsection (E). See T.D.L., 2006 WL
302126, at *7–8 (holding evidence legally sufficient to support trial court’s
subsection (E) finding because evidence revealed that mother’s prior course of
conduct regarding her continuous misuse of prescription drugs demonstrated that
she had endangered her children’s well-being; although mother had tested
positive for marijuana and cocaine on two occasions, the emphasis throughout
the analysis was on mother’s continuous abuse of prescription drugs). We
therefore continue to follow the prior precedent of this court.
23
out, Mother’s doctor continued to prescribe Xanax and hydrocodone for her
during her pregnancy with S.B.G.-R., Mother did not know or reveal to her doctor
that she was pregnant until she was four months’ pregnant. The record also
reveals that throughout her pregnancy, Mother not only continued to take the
prescriptions in the prescribed dosage but also that Mother abused the
prescriptions, exceeding the dosage prescribed by the doctor, which endangered
S.B.G.-R. and contributed to S.B.G.-R.’s addiction to opiates and
benzodiazepines. As set forth above, S.B.G.-R. remained in the hospital for five
weeks after birth while she was on methadone for withdrawals, and when she
was released, she continued on Phenobarbital for the remaining withdrawal
symptoms. This evidence constitutes more than a scintilla of evidence to support
the inclusion of jury question six regarding Mother’s endangering conduct toward
S.B.G.-R. Accord M.E.-M.N., 342 S.W.3d at 262–64 (holding evidence legally
sufficient to support factfinder’s firm conviction or belief that appellant had
engaged in conduct that endangered child because appellant had abused
prescription drugs, along with testing positive for cocaine or methamphetamine);
In re V.R., No. 02-09-00001-CV, 2009 WL 2356906, at *6 (Tex. App.—Fort Worth
July 30, 2009, no pet.) (mem. op.) (holding evidence sufficient to support trial
court’s endangerment findings based on mother’s drug history and her drug use
before and during the termination proceedings, regardless of the medical
reasons for which she claimed she took the drugs; mother had taken Vicodin
while pregnant and tested positive for the drug at child’s birth and at times after
24
birth, which showed a continuing course of conduct); T.D.L., 2006 WL 302126, at
*7–8 (holding evidence legally sufficient to support trial court’s subsection (E)
finding because evidence revealed that mother had continuously abused
prescription drugs).
Even without the evidence of Mother’s prescription drug use in excess of
the prescribed dosage, the evidence is sufficient to support the inclusion of jury
question six because there was evidence that Mother had used heroin before
and after S.B.G.-R. was born. Glenda Hood, Mother’s sponsor at the Salvation
Army, testified that Mother had told her that she had used heroin while pregnant
with S.B.G.-R. Additionally, Mother’s evaluation at First Step Denton County
Outreach in October 2010 showed that Mother had abused cocaine and heroin.
And in early November 2010, approximately six weeks after S.B.G.-R. was born,
Mother’s probation was revoked after a hair strand test came back positive for
heroin; Mother thereafter spent time in SAFP and in a halfway house and was
still living at the halfway house during the termination trial. The above is some
evidence that Mother’s continuous, voluntary, deliberate, and conscious course
of conduct—that is, using illegal drugs during her pregnancy and after her
children had been removed, as well as spending time in jail—subjected S.B.G.-R.
to a life of uncertainty and instability and supported the inclusion of jury question
six that Mother had engaged in conduct that had endangered S.B.G.-R.’s
physical or emotional well-being. We therefore hold that more than a scintilla of
evidence exists to support the submission of the section 161.001(1)(E)
25
endangering conduct question to the jury. See, e.g., Patlyek v. Brittain, 149
S.W.3d 781, 789 (Tex. App.—Austin 2004, pet. denied) (holding that there was
some evidence to support the submission of the past physical impairment
element of damages); see also In re D.J.W., No. 01-11-00703-CV, 2012 WL
3525542, at *9 (Tex. App.—Houston [1st Dist.] Aug. 16, 2012, no pet. h.) (holding
evidence legally sufficient to support finding that mother used illegal narcotics
before and after child was taken into custody by Department and that mother’s
drug use endangered the physical or emotional well-being of child by exposing
him to risks that mother would be impaired or imprisoned); M.L.B., 269 S.W.3d at
760 (holding evidence sufficient to establish grounds for termination because
mother had a long history of drug abuse and knew she was pregnant when she
consumed controlled substances).17 We overrule Mother’s fourth issue.18
17
Mother does not challenge the sufficiency of the evidence supporting the
subsection (E) finding. Even if such a challenge had been made, based on the
evidence and case law set out above, it would not result in a reversal as the
record demonstrates that the jury’s subsection (E) finding is supported by clear
and convincing evidence of Mother’s conduct—including abuse of prescription
drugs and illegal drug use, limited prenatal care, and imprisonment—that
endangered the physical or emotional well-being of S.B.G.-R.
18
Along with a best interest finding, which we discuss below, a finding of
only one ground alleged under section 161.001(1) is sufficient to support a
judgment of termination. See In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—
Fort Worth 2007, no pet.). Because we hold that the evidence supports the
termination of Mother’s parental rights under section 161.001(1)(E), we need not
address Mother’s second issue challenging the section 161.001(1)(O) finding or
Mother’s third issue challenging the submission of the section 161.001(1)(D) jury
question. See Tex. R. App. P. 47.1 (stating that appellate court need address
every issue necessary for final disposition of appeal).
26
B. No Charge Instruction Required on Wealth; Ability to Provide
Necessities Is Proper Consideration in Best Interest Analysis
In her first issue, Mother argues that the trial court abused its discretion by
failing to instruct the jury that they should disregard the relative wealth of Mother
compared to the proposed adoption candidates for the children. Specifically,
Mother argues that the trial court abused its discretion by not including in the jury
charge her proposed instruction—i.e., ―You are instructed that you are not to
consider the wealth of any person in answering any question submitted to you by
the court.‖ The trial court denied the requested instruction stating, ―I agree with
you that wealth alone should not be a factor in this case, but I believe that that
oversimplifies the issues in the case as well.‖
We review a trial court’s decision to submit or refuse a particular instruction
under an abuse of discretion standard of review. See In re V.L.K., 24 S.W.3d
338, 341 (Tex. 2000) (citing La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676
(Tex. 1998)). The trial court has considerable discretion to determine necessary
and proper jury instructions. See id.
A parent’s rights cannot be terminated based on poverty without a showing
that the poverty has endangered the child. See Doyle v. Tex. Dep’t of Protective
& Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet.
denied). Nor can a parent’s rights be terminated based on a foster family’s ability
to provide more than a biological parent can provide. See generally In re W.C.,
98 S.W.3d 753, 758 (Tex. App.—Fort Worth 2003, no pet.) (stating that under
27
best interest prong of section 161.001(2), termination should not be used to
merely reallocate children to better and more prosperous parents).
There is 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). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The
following factors should be considered in evaluating the parent’s willingness and
ability to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the
child;
(4) whether the child has been the victim of repeated harm after the
initial report and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child’s
home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or
others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(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;
28
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;
(12) whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under the
family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities;
and
(13) whether an adequate social support system consisting of an
extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
Other, nonexclusive factors that the trier of fact in a termination case may
use in determining the best interest of the child include:
(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;
29
(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.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted). A
parent’s lack of education, training, or misfortune, including poverty, falls within
the final category of factors enumerated in Holley, and is thus only one of the
factors to be considered by the trier of fact in determining the best interest of the
child. In re S.H.A., 728 S.W.2d 73, 89–90 (Tex. App.—Dallas 1987, writ ref’d
n.r.e.).
Here, the focus of the trial was not on Mother’s wealth or lack thereof but
rather on whether she, as a recovering drug addict living at a halfway house,
could provide for her children. During the questioning of Chris’s mother, who
was caring for S.B.G.-R., it was clear that the issue was not about who had more
wealth but about whether Chris and Mother, who were in jail and at a halfway
house, respectively, could provide basic necessities for the children:
Q. Now, you were asked some questions about money,
having money for raising children. Do you recall Mr. Trantham’s
questions about that?
A. No, not really.
Q. That you have the money and the resources to provide, to
take trips. Do you recall that line of questions?
30
A. Yes, uh-huh.
Q. Wouldn’t you say as a parent that when you refer to
money, that you’re not talking about affluence. You’re talking about
money being necessary to live on, to provide, eat, put a roof over
your head?
A. Exactly.
Q. Do you think those are necessities, basic necessities that
a parent is responsible for providing for their children?
A. Yes.
Q. And in testifying here to the jury today, wouldn’t you agree
with me that as your son and [Mother] sit in this courtroom, to the
best of your knowledge, they don’t have jobs, they don’t have
money, and they don’t have a roof over their head?
A. That’s what I understand.
Q. And do you think that as we sit here today, if the Court
ordered the children back into their custody, that you don’t know
where they would live?
A. No, I do not.
Q. Or how they would feed those children?
A. No.
Because under the section 263.307(b) factors and the Holley factors listed above
the jury was allowed to consider in making its best interest determination whether
Mother could provide her children with health and nutritional care and a safe
physical home environment and whether she could provide for her children’s
emotional and physical needs, which could be weighed against any excuse (such
as poverty) for her inability to provide, we hold that the trial court did not abuse its
31
discretion by denying Mother’s proposed jury instruction to disregard the relative
wealth of the parties. See Tex. Fam. Code Ann. § 263.307(b); Holley, 544
S.W.2d at 371–72; S.H.A., 728 S.W.2d at 90–91 (despite parents’ poverty and
low intelligence, legally sufficient evidence supported best interest finding
because parents did not have the capacity or the ability to care for child); see
also In re T.N., 180 S.W.3d 376, 385 (Tex. App.—Amarillo 2005, no pet.) (citing
S.H.A. and holding that evidence was sufficient to support best interest finding
because evidence showed that mother’s drug use and demonstrated association
with other drug users constituted a danger emotionally and physically both in the
present and future). We overrule Mother’s first issue.
V. MOTHER LACKS STANDING TO CHALLENGE AD LITEM’S
REPRESENTATION OF CHILD
In her fifth issue, Mother argues that S.I.-M.G.’s ad litem ―failed and
refused to present her client’s legal position to the court.‖19 Mother contends that
S.I.-M.G. was denied due process of law because despite S.I.-M.G.’s requests to
have contact with Mother, the attorney ad litem ―insisted that the best interest of
the child required termination.‖ Mother further argues that the attorney ad litem
did not ―have standing to advocate for termination on behalf of the child.‖
19
The attorney ad litem represented both S.I.-M.G. and S.B.G.-R. On
appeal, Mother challenges only the attorney ad litem’s representation of S.I.-M.G.
This is the only challenge that Mother makes to the termination of her parental
rights to S.I.-M.G.
32
Without citing any statutory or case law, Mother summarily states that she
has standing to bring this issue because she is ―the mother of the child, best
friend, and only person able to make legal decisions for the child until those
powers were usurped by the State.‖ We disagree.
A party may not complain of errors that do not injuriously affect her or that
affect only the rights of others. In re T.N., 142 S.W.3d 522, 524 (Tex. App.—Fort
Worth 2004, no pet.) (citing Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 988
S.W.2d 750, 752 (Tex. 1999); Buckholts ISD v. Glaser, 632 S.W.2d 146, 150
(Tex. 1982); Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973)).
An exception exists when the appellant is deemed to be a party under the
doctrine of virtual representation, which requires among other elements that the
appellant and the children have identical interests. Id. (citing Gunn v.
Cavanaugh, 391 S.W.2d 723, 725 (Tex. 1965)). The record does not show that
Mother and S.I.-M.G. have identical interests, nor does Mother claim that they
do. Instead, without presenting any evidence that Mother suffered harm from the
ad litem’s representation of S.I.-M.G., Mother seeks to exploit the alleged
deficiencies of the child’s counsel for her own use on appeal.
Mother does not have standing on appeal to complain about the
performance of the child’s attorney on the child’s behalf. At the time of the trial,
CPS had temporary managing conservatorship, including the right to represent
the child in a legal action and to make other decisions of substantial legal
significance concerning the child. See Tex. Fam. Code Ann. § 153.371(8) (West
33
2008). Mother did not have that right then, nor does she now on appeal.
Further, Mother has no standing to complain about the child’s lawyer on her own
behalf. See T.N., 142 S.W.3d at 524 (citing Mandlbauer, 988 S.W.2d at 752;
Glaser, 632 S.W.2d at 150; Jackson, 499 S.W.2d at 92; see also In re Frank L.,
97 Cal. Rptr. 2d 88, 90, 81 Cal. App. 4th 700, 703 (Cal. Ct. App. 2000) (holding
that parents must actually make a showing that ineffective assistance of the
children’s attorney affected the parents’ interest to have standing to raise the
claim)).20 Because Mother lacks standing to complain about the child’s attorney
ad litem, we overrule Mother’s fifth issue.
VI. CONCLUSION
Having overruled every issue necessary for disposition of this appeal, we
affirm the trial court’s judgment terminating Mother’s parental rights to S.I.-M.G.
and S.B.G.-R.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DELIVERED: November 15, 2012
20
Moreover, assuming in the alternative that Mother did have standing to
complain about S.I.-M.G.’s ad litem, Texas Family Code section 107.008 states
that an attorney ad litem may determine that the child cannot meaningfully
formulate the child’s objectives of representation and, in that case, may present
to the court a position that the attorney determines will serve the best interest of
the child. Tex. Fam. Code Ann. § 107.008(a)–(b) (West 2008).
34