Opinion
No. 05-10-00413-CV
Opinion Filed October 26, 2010.
On Appeal from the 330th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 08-22278-Y.
Before Justices BRIDGES, FRANCIS, and LANG.
MEMORANDUM OPINION
Following a bench trial, the trial court terminated the parental rights of appellant Donald Ray Andrews with respect to D.V. In thirty-eight issues on appeal, appellant contends the evidence was legally and factually insufficient to support the termination. We affirm. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
Pursuant to Texas Rule of Appellate Procedure 9.8, the minor who is the subject of this case and the mother of that minor are identified only by initials. Tex. R. App. P. 9.8.
Under the section of his appellate brief titled "Issues Presented," appellant lists thirty-eight "points" for this Court's review. For purposes of clarity and consistency, we refer to appellant's "points" as "issues" in this opinion. See Tex. R. App. P. 38.1(f) (appellant's brief must state concisely all "issues or points" presented for review).
I. FACTUAL AND PROCEDURAL BACKGROUND
At the March 18, 2010 trial in this case, Marcus Melton, a caseworker with the Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services ("the Department"), testified that D.V. tested positive for cocaine at birth on November 5, 2008. The parental rights of D.V.'s mother, P.V., were terminated by interlocutory order, which was later made final. P.V.'s initial assertion as to D.V.'s paternity turned out to be incorrect, and appellant was subsequently determined to be the biological father of D.V. At the time that determination was made, D.V. was in the custody of the Department.
The record does not show P.V. has contested the termination of her parental rights.
On April 29, 2009, the Department filed a "First Amended Petition for Protection of a Child(ren), for Conservatorship and for Termination, in the Suit Affecting the Parent-Child Relationship." In that petition, the Department asserted, in part, that "the Court should terminate the parent-child relationship between [appellant] and [D.V.] under Chapter 161, Texas Family Code" because such termination is in the best interest of D.V. and appellant committed "one or more" of nineteen "acts or omissions" listed in the petition. Appellant filed an answer that included a general denial and a request that he be named sole managing conservator of D.V.
Melton testified that pursuant to a November 2009 mediated agreement between the Department and appellant, appellant agreed "to do certain things in order to get [D.V.]." According to Melton, appellant complied with the requirements of that agreement. Melton testified that subsequent to entering into the mediated agreement, appellant moved into an apartment with his wife, Paula LaShon Andrews ("P. Andrews"), whom the Department knew had "used drugs." In December 2009, the Department requested that P. Andrews undergo a "hair strand" test. After P. Andrews did so, Melton informed appellant "that the results from [P. Andrews's ] test were positive for cocaine." Melton testified he asked appellant "if he had anyone else who could care for [D.V.] in his absence." According to Melton, "at that time [appellant] couldn't provide anyone." Melton stated appellant subsequently provided a name, but that person "doesn't want to care for the child." Melton testified he asked appellant to rectify the situation by requesting P. Andrews to move out of the residence, but appellant said he could not do so. Melton stated appellant "was aware at the time that [P. Andrews] was an impediment to him being able to get his child" and appellant knew the Department "felt that it was an endangerment to [D.V.] to be around someone who was using drugs." Melton testified that since January 2009, D.V. has been living with foster parents who want to adopt him.
T.V., a sixteen-year-old daughter of P.V., testified she lived with her mother for six or seven years before P.V.'s parental rights as to her were terminated. T.V. stated that during that time, she and P.V. rented a room in the home of P. Andrews, and P.V. and P. Andrews used drugs together. T.V. testified she saw P. Andrews use crack cocaine. According to T.V., appellant would "come around" "probably like every other day" during the time she and P.V. lived with P. Andrews. T.V. stated P.V. and P. Andrews were not high on drugs at the times appellant "came around." T.V. testified she had "a lot" of concerns regarding D.V. living in a household with appellant and P. Andrews. Specifically, T.V. testified as follows:
A. I'm concerned because how much she used to use it, I mean, it was like barely, she barely went out without it. And I didn't like the fact that, like, when she was high and stuff, and when my mom and her didn't get the drugs, then it was like all hell in our house.
Q. What you mean by [sic], it would brake [sic] out all hell?
A. Like they were always yelling at us and stuff.
Q. Do you feel that [D.V.] would be in danger if he was to move into a household with [appellant] and [P. Andrews]?
A. Yes, ma'am.
Following T.V.'s testimony, the Department rested its case. Then, appellant moved for a directed verdict. Appellant stated in part that "no grounds" had been shown for termination of his parental rights. The trial court denied appellant's motion.
Appellant testified that since the time he learned D.V. was his child in June or July of 2009, he has done all that the Department has asked him to do in order to get custody of D.V. Appellant stated he has been allowed weekly visits with D.V. and has tried to "keep up with" those visits. He testified he had recently missed four consecutive visits due to a death in the family, a wrongful termination lawsuit he is involved in, and transmission problems with his car. He testified he does not use any type of illegal substances or misuse legal substances and has never tested positive for drugs.
Appellant stated he married P. Andrews in 1995 and was separated from her at the time she lived with P.V. and at the time he entered into the mediated agreement. According to appellant, to his knowledge, he has never been around P. Andrews when she was high or under the influence of drugs. Appellant testified he has retired and "can be there with [D.V.] 24/7." He testified he would be willing to not allow D.V. to be alone with P. Andrews. Appellant stated he had made babysitting arrangements with two relatives for times when he could not be with D.V. One of those relatives is his daughter, Sheila, whose three children were previously removed from her care by the Department, but have been returned to her. Appellant acknowledged that he provided Sheila's name to the Department and the Department refused to consider her. The other relative is appellant's sister, who has grown children. Further, appellant testified he has "[a]bout eight more" family members who have said they "would help." Appellant stated that if the court required it, he would see that P. Andrews went to drug treatment. He stated he has discussed the idea of drug treatment with P. Andrews. He testified he has raised six other children and knows he is a good father.
On cross-examination, appellant stated he did not know that P. Andrews used drugs. Additionally, appellant testified as follows:
Q. Well, my question is, you can understand that [the Department] has the concern that placing [D.V.] in a home with a woman who uses drugs is an endangerment to that child. Do you understand that, sir?
A. No ma'am, because I'm going to be there.
Contrary to his earlier testimony that he is retired and can be with D.V. "24/7," appellant testified that when his wrongful termination lawsuit ended, he intended to go back to work as a bus driver. According to appellant, in his previous position as a bus driver, he had worked from 5 a.m. until approximately noon, which necessitated leaving home for work at about 4:30 a.m. He testified he planned to take D.V. to his sister's house each morning before work. He stated he thinks his sister's work hours are "nine to five." Further, appellant responded on cross-examination as follows:
Q. Isn't your sister the one that Marcus [Melton] was talking about that said she was not willing to take this child?
A. Probably not to live with, but she will be a back up baby sitter.
Appellant testified he has provided adequate housing for D.V. and is trying to provide a safe environment for him. Appellant's testimony included the following exchange:
Q. So isn't it possible, sir, that if someone is using drugs there could be hidden drugs in the house?
A. No, that's not possible.
Q. That's not possible?
A. No.
After appellant rested his case, the trial court asked D.V.'s guardian ad litem, Carmen Urias, whether she had a recommendation. Urias recommended that appellant's parental rights be terminated. Then, the trial judge stated, in part, "[t]he Court has concerns about a child who is born with cocaine in his system being placed in a home where there has been confirmed cocaine usage and no steps being taken to rectify that situation." The trial judge stated "the Court will grant the requested relief" as to termination of appellant's parental rights.
In a "Final Decree of Termination" dated March 18, 2010, the trial court stated in relevant part:
The Court finds that [appellant] has engaged in conduct which endangers the physical or emotional well-being of the child; and
Constructively abandoned the child who has been in the temporary managing conservatorship of the Texas Department of Family and Protective Services or an authorized agency for not less than six months and (1) the Department or authorized agency has made reasonable efforts to return the child to the father; (2) the father has not regularly visited or maintained significant contact with the child; and (3) the father has demonstrated an inability to provide the child with a safe environment, pursuant to Section 161.001(1)(N) of the Texas Family Code;
The Court also finds that it is in the best interest of the child the subject of this suit to terminate, the parent child relationship between [D.V.] and [appellant].
Appellant timely filed (1) a notice of appeal, (2) an affidavit of inability to give security for costs for appeal, (3) a statement of appellate points, and (4) a request for findings of fact and conclusions of law. The record does not show the trial court made findings of fact or conclusions of law.
II. TERMINATION OF APPELLANT'S PARENTAL RIGHTS A. Standard of Review and Applicable Law
A trial court may terminate the parent-child relationship if the fact-finder finds by clear and convincing evidence (1) a parent committed one or more of the enumerated statutory acts in section 161.001(1) of the family code and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 2008 Supp. 2010); In re C.R., 263 S.W.3d 368, 371 (Tex. App.-Dallas 2008, no pet.); see also In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (only one act under section 161.001(1) necessary for termination). Clear and convincing evidence is "the measure or degree of proof that 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." Tex. Fam. Code Ann. § 101.007 (West 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); In re C.R., 263 S.W.3d at 371. On appeal, we apply a standard of review that reflects this burden of proof. In re C.R., 263 S.W.3d at 371.
Although we recognize that a prior version of section 161.001 was in effect at the time this suit was filed, the subsequent amendments do not affect our analysis of the issues before us. We cite to the current version of the statute in this opinion.
When reviewing the legal sufficiency of the evidence in a parental termination case, we consider all of the evidence in the light most favorable to the finding to determine whether the fact-finder could reasonably have formed a firm belief or conviction the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266; In re C.R., 263 S.W.3d at 371. In doing so, we assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so and we disregard all evidence that a reasonable fact-finder could have disbelieved or found to be incredible. In re J.P.B., 180 S.W.3d at 573 (citing In re J.F.C., 96 S.W.3d at 266). However, we must also consider any undisputed evidence contrary to the finding in our analysis. In re J.F.C., 96 S.W.3d at 266; In re C.R., 263 S.W.3d at 371.
In conducting a factual sufficiency review in a parental termination case, we must give due consideration to any evidence the fact-finder could reasonably have found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)); In re C.R., 263 S.W.3d at 371. We consider whether the disputed evidence is such that a reasonable fact-finder could not have resolved the disputed evidence in favor of its finding. In re H.R.M., 209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266; In re C.R., 263 S.W.3d at 371. If, in light of the entire record, the disputed evidence is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266; In re C.R., 263 S.W.3d at 371.
B. Application of Law to Facts
In issues five and twenty-four, appellant contends the evidence was not legally or factually sufficient to support a finding that appellant "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, in violation of section 161.001(1)(E) of the Texas Family Code." Appellant argues no evidence was presented that he "engaged in any conduct, either before or after the removal that endangered D.V." Further, appellant asserts no evidence was presented to the trial court that he had placed D.V. with anyone who had endangered him. The Department responds that "[a]ppellant, by moving in with a drug addict and intending for D.V. to live with him and the drug addict in the household and by failing to provide the [D]epartment with a suitable plan for daycare for D.V.," engaged in "conduct during the pendency of the termination suit that endangered the physical and emotional well-being of D.V."
To terminate a parental relationship under section 161.001(1)(E), a court must find by clear and convincing evidence that the parent "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). "This section refers only to the parent's conduct, as evidenced by the parent's acts or by the parent's failure to act." In re C.R., 263 S.W.3d at 371. Further, termination under section 161.001(1)(E) must be based on more than a single act or omission. Id. (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.)). "[A] voluntary, deliberate, and conscious course of conduct by the parent is required." Id.
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 conduct be directed at the child or that or that the child actually suffer injury. Id. (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); In re C.E.K., 214 S.W.3d 492, 496 (Tex. App.-Dallas 2006, no pet.). "Rather, `endanger' means to expose to loss or injury; to jeopardize." Boyd, 727 S.W.2d at 533; see also In re C.R., 263 S.W.3d at 371. Child endangerment under section 161.001(1)(E) "can be inferred from parental misconduct even though there is no showing of an actual or concrete threat of injury to the child's emotional or physical well-being." In re Baby Boy R., 191 S.W.3d 916, 925 (Tex. App.-Dallas 2006, pet. denied). If the evidence shows a course of conduct that has the effect of endangering the child's physical or emotional well-being, then a finding under section 161.001(1)(E) is supportable. In re J.C., 151 S.W.3d 284, 288 (Tex. App.-Texarkana 2004, no pet.) (citing Boyd, 727 S.W.2d at 534); see also Dir. of Dallas Cnty. Child Protective Servs. Unit of Tex. Dept. of Human Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.-Dallas 1992, no writ) (stating same law in case involving predecessor to section 161.001(1)(E)). Conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of the child. In re S.D., 980 S.W.2d 758, 763 (Tex. App.-San Antonio 1998, pet. denied); In re M.C., No. 2-07-408-CV, 2008 WL 2404459, at *4 (Tex. App.-Fort Worth June 12, 2008, no pet.) (mem. op.).
Here, the evidence showed appellant is aware of P. Andrews's drug use and continues to reside with her. Appellant testified he (1) would be willing to not allow D.V. to be alone with P. Andrews and (2) had made babysitting arrangements with two relatives for times when he could not be with D.V. Appellant acknowledged the Department had refused to consider one of the persons he planned to rely on for babysitting. Further, on the one hand, appellant testified he was retired and would be with D.V. "24/7." However, he also testified, when he resumed employment, the babysitter he planned to use worked "nine to five" at another job. The record does not show that babysitter would be available during appellant's own work hours. When asked whether he understood that the Department "has the concern that placing [D.V.] in a home with a woman who uses drugs is an endangerment to that child," appellant replied, "No ma'am, because I'm going to be there."
T.V., who had lived with P. V. and P. Andrews, testified that "when [P.V.] and [P. Andrews] didn't get the drugs, then it was like all hell in our house." T.V. stated "they were always yelling at us and stuff." T.V. testified she felt D.V. would be in danger if he lived in a household with appellant and P. Andrews.
On this record, we conclude a reasonable trier of fact could have formed a firm belief or conviction that appellant engaged in conduct that endangered D.V.'s physical or emotional well-being. See In re J.C., 151 S.W.3d at 288 (if evidence shows course of conduct that has effect of endangering child's physical or emotional well-being, then finding under section 161.001(1)(E) is supportable); In re S.D., 980 S.W.2d at 763 (conduct that subjects child to life of uncertainty and instability endangers physical and emotional well-being of child). Further, in light of the entire record, we cannot conclude a reasonable fact-finder could not have formed a firm belief or conviction as to such endangering conduct. See In re J.C., 151 S.W.3d at 288; In re S.D., 980 S.W.2d at 763. Therefore, we conclude the evidence is legally and factually sufficient to support a finding of endangerment pursuant to section 161.001(1)(E). Tex. Fam. Code Ann. § 161.001(1)(E); In re J.P.B., 180 S.W.3d at 573 (stating legal sufficiency standard in termination cases); In re H.R.M., 209 S.W.3d at 108 (stating factual sufficiency standard in termination cases). We decide against appellant on his fifth and twenty-fourth issues.
Additionally, the Department asserts in its brief on appeal, "Appellant contends that because D.V. was in [Department] custody at the time he became aware that he was D.V.'s father and, therefore, never had possession of D.V., there is no evidence to show that he engaged in conduct that endangered D.V." To the extent appellant's argument can be thus construed, we disagree with appellant. The case law does not support the position that only acts of conduct that occurred before a child was removed from custody of the parent can be considered in section 161.001(1)(E) cases. See, e.g., In re C.R., 263 S.W.3d at 373 (termination under 161.001(1)(E) supported in part by evidence of parent's continued use of drugs after child was removed); In re M.C., 2008 WL 2404459, at *4 (termination under section 161.001(1)(E) supported in part by evidence of parent's continued drug use during pendency of termination suit).
Appellant does not challenge the trial court's finding that termination of the parent-child relationship between appellant and D.V. is in D.V.'s best interest. Consequently, we need not address that finding. See In re J.P.B., 180 S.W.3d at 572 n. 2. Further, because the evidence is legally and factually sufficient to support a finding under section 161.001(1)(E), we need not consider appellant's other thirty-four issues that challenge the sufficiency of the evidence to support additional grounds for termination under section 161.001(1) as pleaded in the first amended petition. See In re A.V., 113 S.W.3d at 362 (only one act under section 161.001(1) necessary for termination). Finally, appellant's issues nineteen and thirty-eight challenge the legal and factual sufficiency of the evidence to support termination of his rights pursuant to family code section 161.002, which addresses termination of the rights of an "alleged father." Tex. Fam. Code Ann. § 161.002 (West 2008). In light of our conclusion above that the evidence is legally and factually sufficient to support termination under section 161.001, we need not reach appellant's issues regarding section 161.002. See id. § 161.002(a) ("The procedural and substantive standards for termination of parental rights apply to the termination of the rights of an alleged father."); see also Tex. R. App. P. 47.1.
III. CONCLUSION
Based on this record and the appropriate standard of review, we conclude the evidence is legally and factually sufficient to support a finding by the trial court that appellant "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" pursuant to section 161.001(1)(E) of the Texas Family Code. We decide against appellant on his fifth and twenty-fourth issues. We need not address appellant's remaining issues.
The trial court's decree is affirmed.