C.B. v. Tex. Dep't of Family & Protective Servs.

458 S.W.3d 576

C.B., Appellant

v.TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.

No. 08–14–00224–CV.

Court of Appeals of Texas, El Paso.

Dec. 9, 2014.

Stephen Earl Dodd, The Dodd Law Firm, PLLC, Big Lake, TX, for Appellant.

Luisa P. Marrero, Austin, TX, for Appellee.

Gonzalo P. Rios, Randol Lane Stout, Law Office of Randol L. Stout, San Angelo, TX, Angela Stout, The Stout Law Firm, PLLC, Houston, TX, for Real Partys in Interest.

Jeffrey Alan Wofford, Fort Stockton, TX, for Ad Litem.

Before McCLURE, C.J., RODRIGUEZ, J., and BARAJAS, C.J., Senior Judge, sitting by assignment.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

CB appeals the termination of his parental rights to his son, AG–B. The appeal is a companion case to Cause Number 08–14–00224–CV in which the mother of the child appeals the termination of her parental rights. Because the cases were tried together and are related, we will detail in both opinions the circumstances of each parent. Indeed, it was their ongoing relationship that created the basis for many of the opinions offered at trial.

Appellant first complains of the trial court's denial of a continuance and jury trial. In four other issues, he challenges the legal and factual sufficiency of the evidence to support the trial court's findings of the statutory predicates for termination. For the reasons that follow, we affirm.

PARENTAL TERMINATION

A parent's rights may be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code. See Tex.Fam.Code Ann. § 161.001 (West 2014). Under this provision, the petitioner must (1) establish one or more of the statutory acts or omissions enumerated as grounds for termination, and (2) prove that termination is in the best interest of the child. See id. Both elements must be established and termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

The natural right of a parent to the care, custody, and control of their children is one of constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985) ; see also Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (acknowledging that a parent's rights to “the companionship, care, custody, and management” of their children are constitutional interests, “far more precious than any property right”). Not only is a parent's interest in maintaining custody of and raising her children “paramount;” it is quite possibly the oldest fundamental liberty recognized by our courts. See In the Interest of M.S., E.S., D.S., S.S., and N.S., 115 S.W.3d 534, 547 (Tex.2003) (noting that Texas courts recognize that “a parent's interest in maintaining custody of and raising his or her child is paramount”); Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (in discussing the constitutional stature of parental rights, the United State Supreme Court said, “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court”); see also In re M.S., 115 S.W.3d at 549 (“Termination of parental rights is traumatic, permanent, and irrevocable.”). Although parental rights are of constitutional magnitude, they are not absolute. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex.2002) (“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.”).

Burden of Proof

Because of the importance of parental rights, and the severity and permanency of termination, the quantum of proof required in a termination proceeding is elevated from a preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 747, 102 S.Ct. at 1391 ; accord Holick, 685 S.W.2d at 20–21 ; see In re M.S., 115 S.W.3d at 547 and In the Interest of D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.-Corpus Christi 2006, no pet.) (cases (recognizing that involuntary termination of parental rights is a drastic remedy which divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent.); see also In the Interest of B.L.D. and B.R.D., 113 S.W.3d 340, 353–54 (Tex.2003) (noting that because of the severity and permanency of termination, due process requires the party seeking to terminate parental rights prove the necessary elements by the heightened burden of proof of clear and convincing evidence).

“Clear and convincing evidence” means 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) ; see In the Interest of J.F.C, 96 S.W.3d 256, 263 (Tex.2002) ; see also In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex.2007) (contrasting the standards applied in termination proceedings and the standards applied in modification proceedings). This intermediate standard falls between the preponderance of evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex.1979) ; In the Interest of D.T., 34 S.W.3d 625, 630 (Tex.App.-Fort Worth 2000, pet. denied) (op. on reh'g). Although the proof must be more than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570.

Standards of Review

The Supreme Court has clearly articulated the applicable standards of legal sufficiency review in termination cases. Accordingly, we consider all of the evidence in the light most favorable to the trial court's finding, “to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex.2005), quoting In re J.F.C., 96 S.W.3d at 266. We give deference to the fact finder's conclusions, indulge every reasonable inference from the evidence in favor of that finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long as a reasonable fact finder could do so. Id; In re J.F.C., 96 S.W.3d at 266. We disregard any evidence that a reasonable fact finder could have disbelieved, or found to have been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573 ; In re J.F.C., 96 S.W.3d at 266. A legal sufficiency or no evidence point will only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. See Swinney v. Mosher, 830 S.W.2d 187, 194 (Tex.App.-Fort Worth 1992, writ denied).

Statutory Predicates

The termination order here was based on Tex.Fam.Code Ann. § 161.001(D)(E)(N) and (O ), with the court finding that Appellant had:

• Knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child (subsection D);

• Engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers they physical or emotional well-being of the child (subsection E);

• Constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months (subsection (N); and

• Failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child (subsection (O )).

Both subsections (D) and (E) require proof of endangerment, which means to expose to loss or injury, or to jeopardize a child's emotional or physical health. Doyle v. Texas Department of Protective and Regulatory Services, 16 S.W.3d 390, 394 (Tex.App.-El Paso 2000, pet. denied). While endangerment 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 the child actually suffer injury. Doyle, 16 S.W.3d at 394. Subsections (D) and (E) differ in one respect: the source of the physical or emotional endangerment to the child. See In Interest of B.S.T., 977 S.W.2d 481, 484 (Tex.App.-Houston [14th Dist.] 1998, no pet.) ; In Interest of S.H.A., 728 S.W.2d 73, 83–84 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). Subsection (D) requires a showing that the environment in which the child is placed endangered the child's physical or emotional health. Doyle, 16 S.W.3d at 394. Conduct of a parent or another person in the home can create an environment that endangers the physical and emotional well-being of a child as required for termination under Subsection D. Id.;see In re W.S., 899 S.W.2d 772, 776 (Tex.App.-Fort Worth 1995, no writ) (“environment” refers to the acceptability of living conditions, as well as a parent's conduct in the home). Inappropriate, abusive, or unlawful conduct by persons who live in the child's home or with whom the child is compelled to associate on a regular basis in his home is a part of the “conditions or surroundings” of the...