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

L. C., Appellant v. Texas Department of Family and Protective Services, Appellee

NO. 03-14-00793-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 8, 2015

FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT

NO. 15,254, HONORABLE CARSON TALMADGE CAMPBELL, JUDGE PRESIDING

MEMORANDUM OPINION

This is an appeal from a final decree, based on jury findings, terminating the parental rights of L.C. to her four-year-old son, S.C. In six issues on appeal, L.C. asserts that: (1) the evidence is insufficient to support a finding that termination was in the best interest of the child; (2) the evidence is insufficient to support a finding that L.C. committed three of the alleged statutory grounds for termination; (3) one of the alleged statutory grounds for termination, although supported by sufficient evidence, was based on a prior termination decree that, L.C. claims, violated her constitutional rights and thus should not have been submitted to the jury; and (4) the district court abused its discretion when it included in the jury charge an instruction that the jurors did not have to unanimously agree on the statutory ground for termination. We will affirm the termination decree.

BACKGROUND

At the termination hearing, the jury heard evidence tending to show that L.C. had an extensive criminal history, including multiple assaults and drug offenses. Further evidence tended to show that L.C. had, on prior occasions, placed S.C. in the care of other individuals with similar criminal histories. Also, the jury heard evidence that L.C.'s parental rights to another child had been terminated in 2007. Based on this and other evidence, which we discuss in more detail below, the district court submitted to the jury, as alternative statutory grounds within broad-form termination issues, whether L.C. had: (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the child's physical or emotional well-being; (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the child's physical or emotional well-being; (3) had her parent-child relationship terminated with respect to another child based on a finding of endangerment; or (4) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child.¹ In addition to these alternative statutory termination grounds, the termination issue also submitted whether termination of L.C.'s rights was in S.C.'s best interest.² The jury found that L.C.'s parental rights to S.C. should be terminated, and the district court rendered judgment accordingly. This appeal followed.

ANALYSIS

Evidentiary sufficiency

In her first, second, and fourth issues, L.C. asserts that the evidence is insufficient to support the jury's findings on termination.³ Specifically, in her first issue, L.C. asserts that the evidence is insufficient to support a finding that termination was in the best interest of the child; in her second issue, L.C. asserts that the evidence is insufficient to support findings regarding the two statutory termination grounds related to endangerment; and, in her fourth issue, L.C. asserts that the evidence is insufficient to support a finding that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child.

Standard of review

In a termination case, we ask whether the Department proved, by clear and convincing evidence, that the parent engaged in conduct that amounts to statutory grounds for termination and that termination is in the child's best interest.⁴ Clear and convincing evidence is a heightened standard of proof that requires "the measure or degree of proof that will produce in the mind of thetrier of fact a firm belief or conviction as to the truth of the allegations sought to be established."⁵ On appeal, we apply a standard of review that reflects this burden of proof.⁶

"In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true."⁷ "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so."⁸ "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible."⁹ However, "[t]his does not mean that a court must disregard all evidence that does not support the finding."¹⁰ The reviewing court must consider "undisputed facts that do not support the finding."¹¹ "If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder couldform a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient."¹²

Statutory termination grounds

Although multiple grounds were submitted to the jury in a standard broad-form question, the jury is required to find only one statutory ground in order to terminate parental rights.¹³ Therefore, so long as there is sufficient evidence to support at least one of these grounds, we must uphold the jury's verdict.¹⁴ We will focus our analysis on the ground stated in section 161.001(1)(E), which provides that parental rights may be terminated if 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."¹⁵

"Under section 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 Appellant's conduct, including acts, omissions, or failures to act."¹⁶ "Termination under subsection 161.001(1)(E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious courseof [endangering] conduct by the parent is required."¹⁷ "The requisite endangerment may be found if the evidence shows a parent's course of conduct that has the effect of endangering the child's physical or emotional well-being."¹⁸ In this context, "endanger" has been broadly defined by Texas courts. Although "'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 the child actually suffers injury."¹⁹ "Rather, 'endanger' means to expose to loss or injury; to jeopardize."²⁰ "Endangerment can occur through both acts and omissions."²¹ "[T]he conduct does not have to cause a concrete threat of injury to the child."²² Nor does the conduct "have to occur in the presence of the child."²³ "And the conduct may occur . . . both before andafter the child has been removed by the Department."²⁴ "If the evidence shows that the parent has engaged in a course of conduct which has the effect of endangering the child, then the finding under subsection E may be upheld."²⁵ "Intentional criminal activity that exposes a parent to incarceration is conduct that endangers the physical and emotional well-being of a child."²⁶ This is true even when the criminal activity does not result in a final conviction.²⁷ "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."²⁸ Therefore, "a parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct."²⁹ Additionally, "[d]omestic violence, want of self control, and propensity for violence may be considered as evidence of endangerment."³⁰ Theviolence does not have to be directed toward the child or result in a final conviction—"Texas courts routinely consider evidence of parent-on-parent physical abuse in termination cases without specifically requiring evidence that the conduct resulted in a criminal conviction."³¹ Similarly, exposing one's child to the risk of domestic violence from others may also constitute endangering conduct.³²

In this case, the Department presented evidence tending to show that L.C. had a well-documented history of engaging in criminal behavior, both before and after S.C.'s birth. In fact, L.C. testified that she was currently incarcerated.³³ Multiple criminal judgments and orders that had been entered against L.C. were admitted into evidence, including: a 2001 order of deferred adjudication for the offense of assault on a public servant; a 2005 judgment revoking community supervision for the assault offense; a 2003 judgment of conviction for the offense of debit-card abuse; a 2007 judgment of conviction for the offense of assault, committed against her then-husband;³⁴ a 2011 judgment of conviction for the offense of failure to provide identification; a 2011 judgment of conviction for the offense of possession of marihuana;³⁵ a 2011 judgment of conviction for theoffense of driving while license invalid; a 2011 judgment of conviction for the offense of credit-card abuse; a 2013 judgment of conviction for the offense of theft; and a 2014 judgment of conviction for the offense of driving while license invalid. L.C. acknowledged in her testimony that she had "a lot" of convictions.

There was also evidence tending to show that L.C. had committed other offenses in addition to the ones for which she had been convicted. Captain Farrah Ramsey of the Giddings Police Department testified that charges were currently pending against L.C. for possession of crack cocaine that had been found in her refrigerator in 2013. Ramsey...