COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-267-CV
IN THE INTEREST OF J.J.O.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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After a bench trial, the trial court found by clear and convincing evidence that Appellant Cynthia O. had: (1) knowingly placed or knowingly allowed her child J.J.O. to remain in conditions or surroundings which endanger her physical or emotional well-being; (2) engaged in conduct or knowingly placed J.J.O. with persons who engaged in conduct which endangers her physical or emotional well-being; (3) had her parent-child relationship terminated with respect to another child based on a finding that her conduct violated section 161.001(1)(D) or (E) of the Texas Family Code2 or substantially equivalent provisions of the law of another state; and (4) been the cause of J.J.O. being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by section 261.001 of the Texas Family Code.3 The trial court also found by clear and convincing evidence that termination of the parent-child relationship between Cynthia and J.J.O. was in the child’s best interest. The trial court entered an order terminating the parent-child relationship between Cynthia and J.J.O. Because we hold that the evidence is sufficient to prove that Cynthia engaged in conduct which endangered J.J.O.’s physical or emotional well-being and that termination is in J.J.O.’s best interest, we affirm the trial court’s judgment.
I. Background Facts
Dawn Adkins, a former CPS caseworker who was assigned to this case, testified for the State. According to her testimony, while termination proceedings were pending regarding the relationship between Cynthia and J.J.O.’s older sister, Cynthia tested positive for cocaine. When she was seven months pregnant with J.J.O., Cynthia was arrested for possession of drug paraphernalia. After her parental rights were terminated regarding the older sister, and three days before she delivered J.J.O., Cynthia used cocaine again. J.J.O was born on January 9, 2003, with cocaine in her system, but there is no evidence in the record that she has suffered adverse effects from it. Cynthia’s medical records from the hospital stay show the presence of cocaine in her system and a chemical dependency. The records also show that Cynthia obtained little or no prenatal care.
During the pendency of the prior case regarding J.J.O.’s older sister, Cynthia was homeless, unemployed, had no transportation, and had suggested no one else who could raise her child. CPS worked with Cynthia for eight or nine months in the prior case, but she was noncompliant, refused treatment, disappeared for three months, and surfaced only after getting arrested. Having already offered Cynthia a service plan including services such as parenting classes, counseling, drug treatment, and inpatient care with the prior case, services which she absolutely refused, CPS was not obligated to provide a service plan for Cynthia in this case.4 When the caseworker told Cynthia that CPS planned to seek termination of the relationship between Cynthia and J.J.O., Cynthia told the caseworker that she was willing to participate in treatment. The caseworker encouraged her to do that, but testified that she did not believe Cynthia ever followed through on her intentions. The caseworker did not provide additional information to Cynthia regarding drug treatment at this point. She had already given her information about Tarrant Counsel, the MHMR program for drug and alcohol abuse. Cynthia said she was going to talk to Tarrant Counsel, but there is no evidence that she did.
While Cynthia suggested J.J.O.’s alleged father as someone who could take care of her, CPS could not locate him despite a diligent search. The caseworker testified that Cynthia did not suggest any alternate placements for J.J.O. other than the alleged father.
Finally, the caseworker testified that Cynthia attended a majority of the scheduled weekly visits with J.J.O., but she missed an entire month of visits, and her last visit occurred sometime in May 2003 before the trial in August 2003. Adkins’s employment with CPS ceased on June 6, 2003.
When J.J.O. left the hospital, she was placed with the same foster family as her older sister. She has remained with that family during her entire time in foster care. She has thus bonded with her sister and her foster family, which includes an adopted son. Her foster family wants to adopt both girls. All her physical and emotional needs are being met in the home. The foster mother testified that J.J.O. had eating problems at first, but she outgrew them. She also stated that there may be problems with J.J.O.’s vision and hearing, for which Early Childhood Intervention is offering services. Additionally, she testified that J.J.O. was a very quiet baby and is still very quiet. Other than those areas, J.J.O. is developmentally on-target. The foster mother testified that J.J.O. sees her foster parents as her parents and that it would be devastating to J.J.O. and her sister if they were removed from their foster family. Cynthia did not testify.
II. No Forfeiture of Issues Absent from Statement of Points
Initially, we note that the State encourages us to reconsider our prior holdings regarding the interpretation and effects of section 263.405 of the Texas Family Code.5 We decline to do so. We likewise decline to hold Cynthia’s fourth, fifth, seventh, and eighth issues forfeited because of their absence from Cynthia’s statement of issues on appeal.
III. Standard of Review
A parent’s rights to “the companionship, care, custody, and management” of his or her children are constitutional interests “far more precious than any property right.”6 “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.”7 In a termination case, the State seeks not just to limit parental rights but to end them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit.8 We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent.9
In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must also prove that termination is in the best interest of the child.10 Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact.11
Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by “clear and convincing evidence.”12 This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings.13 It is defined as 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.”14
The higher burden of proof in termination cases alters the appellate standard of legal sufficiency review.15 The traditional no-evidence standard does not adequately protect the parent’s constitutional interests.16 In reviewing the evidence for legal sufficiency in parental termination cases, we must determine “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction” that the grounds for termination were proven.17 We must review all the evidence in the light most favorable to the finding and judgment.18 This means that we must assume that the factfinder resolved any disputed facts in favor of its finding if a reasonable factfinder could have done so.19 We must also disregard all evidence that a reasonable factfinder could have disbelieved.20 We must consider, however, undisputed evidence even if it does not support the finding.21
The higher burden of proof in termination cases also alters the appellate standard of factual sufficiency review.22 “[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.”23 In considering whether the evidence of termination rises to the level of being clear and convincing, we must determine “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction” that the grounds for termination were proven.24 Our inquiry here is whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated one of the conduct provisions of section 161.001(1) and that the termination of the parent’s parental rights would be in the best interest of the child.25 We must uphold only one finding under section 161.001(1) and the best interest finding to hold the evidence sufficient to support termination.26
IV. Analysis
A. Endangering Conduct
In her third issue, Cynthia explicitly challenges the legal sufficiency of the finding that she engaged in conduct or knowingly placed J.J.O. with persons who engaged in conduct which endangers J.J.O.’s physical or emotional well-being because J.J.O. was never exposed to Cynthia. Specifically, Cynthia argues that J.J.O. was not a child until her birth, and that there is no evidence Cynthia ever endangered her because J.J.O. has been in the care of others (the hospital and foster parents) since her birth. There is no evidence that others endangered J.J.O. after her birth. Cynthia further argues that the statute requires a present danger to J.J.O.
From her discussion of this issue, it is clear that Cynthia necessarily views the evidence as factually insufficient.27 We are unwilling to decide the issue of “[t]he termination of parental rights, fundamental and constitutional in their magnitude, . . . on trifling points regarding the construction of appellate briefs. It has long been ‘our practice to liberally construe (briefs) in order to obtain a just, fair and equitable adjudication of the rights of the litigants.’”28 In the interest of justice and judicial economy, we therefore hold that in the particular case before us, the issue of the factual sufficiency of the evidence supporting the finding on 161.001(1)(E) is a subsidiary issue within Cynthia’s no-evidence issue and we will address it.29
As
this court held in In re R.W.,
B.B. contends that termination was not proper based on section 161.001(1)(E) because he never had custody of R.W. at any time after her birth other than one hour of supervised visitation per week. Moreover, he maintains that remote and isolated incidents that occurred prior to R.W.’s birth do not constitute sufficient evidence to establish an endangering course of conduct. TDPRS maintains, however, that B.B.’s history of substance abuse, mental health issues, and sexual and criminal misconduct clearly demonstrates an endangering course of conduct that posed both physical and emotional danger to R.W.’s well-being.
Under section 161.001(1)(E) of the Texas Family Code, the term ‘endanger’ means to expose to loss or injury, to jeopardize. Accordingly, when analyzing a jury’s findings pursuant to subsection (E), we must determine whether sufficient 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. Termination under section 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. However, it is not necessary that the parent's conduct be directed at the child or that the child actually suffer injury. The specific danger to the child's well-being may be inferred from parental misconduct standing alone.
To determine whether termination is necessary, courts may look to parental conduct both before and after the child's birth. Further, a father’s conduct prior to the establishment of paternity may be considered as evidence of an endangering course of conduct. Consequently, scienter is only required under subsection (E) when a parent places the child with others who engage in an endangering course of conduct.
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. Drug use and its effect on a parent’s life and his ability to parent may establish an endangering course of conduct.30
Based upon our review of the evidence of Cynthia’s course of conduct—her unstable lifestyle, her refusal to comply with the service plan and accept treatment while the prior case was pending, her decisions to engage in illegal drug use not only while she was at risk of losing the older child but, more importantly, while she was pregnant with J.J.O., her failure to express willingness to get treatment until after she was told CPS planned to seek termination of her rights to J.J.O., and her failure to get adequate prenatal care, we hold that the evidence is legally and factually sufficient to support the trial court’s finding that she engaged in conduct that endangered J.J.O.’s physical or emotional well-being. We overrule Cynthia’s third issue and do not reach the second or the fourth through the ninth issues relating to the sufficiency of the evidence on the other grounds for termination.31
B. Best Interest
In her first issue, Cynthia challenges the factual sufficiency of the trial court’s best interest finding.
Nonexclusive
factors that the trier of fact in a termination case may use in determining the
best interest of the child include:
(1)the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(9)any excuse for the acts or omissions of the parent.32
These factors are not exhaustive. Some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate.33 Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child.34 On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding.35
J.J.O., who is now approximately sixteen months old, is in the only home she has ever known. She is with her biological sister, a foster brother, and dual licensed foster parents who are eager to adopt both girls. The record demonstrates that the foster family can meet and is meeting all of J.J.O.’s needs. The record does not demonstrate that Cynthia can meet any of J.J.O.’s needs. Based on all of the evidence, we hold that the evidence is factually sufficient to support the best interest finding. We overrule Cynthia’s first issue.
V. Conclusion
Having affirmed the trial court’s findings that Cynthia engaged in conduct which endangered the physical or emotional well-being of J.J.O. and that termination is in J.J.O.’s best interest, we affirm the judgment of the trial court.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DELIVERED: May 6, 2004
NOTES
1. See Tex. R. App. P. 47.4.
2. Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon 2002).
3. Id. § 261.001.
4. See id. § 262.2015.
5. See, e.g., In re S.J.G., 124 S.W.3d 237, 240-43 (Tex. App.—Fort Worth 2003, pet. denied); In re W.J.H., 111 S.W.3d 707, 712-13 (Tex. App.—Fort Worth 2003, pet. denied); In re D.R.L.M., 84 S.W.3d 281, 290-91 (Tex. App.—Fort Worth 2002, pets. denied).
6. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982).
7. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
8. Tex. Fam. Code Ann. § 161.206(b) (Vernon Supp. 2004); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
9. Holick, 685 S.W.2d at 20-21; In re D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
10. Tex. Fam. Code Ann. § 161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied).
11. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
12. Tex. Fam. Code Ann. §§ 161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).
13. G.M., 596 S.W.2d at 847; D.T., 34 S.W.3d at 630.
14. Tex. Fam. Code Ann. § 101.007 (Vernon 2002).
15. In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002).
16. Id.
17. Id. at 265-66.
18. Id. at 266.
19. Id.
20. Id.
21. Id.
22. C.H., 89 S.W.3d at 25.
23. Id.
24. Id.
25. Id. at 28.
26. In re R.W., 129 S.W.3d 732, 736 (Tex. App.—Fort Worth 2004, pet. filed); In re D.M., 58 S.W.3d 801, 813 (Tex. App.—Fort Worth 2001, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.); see also Tex. R. App. P. 47.1.
27. See In re D.S.A., 113 S.W.3d 567, 569 (Tex. App.—Amarillo 2003, no pet.) (stating that “if the evidence is factually sufficient, then, it is also legally sufficient. This is so because, logically, there cannot be ‘no evidence’ of record if the record contains enough evidence to enable the factfinder to reasonably form a firm belief or conviction as to the existence of pivotal facts.”).
28. In re L.M.I., 119 S.W.3d 707, 733 (Tex. 2003) (Hecht, J., dissenting) (citations omitted).
29. See Tex. R. App. P. 38.1(e), 38.9; Stephenson v. LeBoeuf, 16 S.W.3d 829, 843-44 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
30. In re R.W., 129 S.W.3d at 738-39 (citations ommited).
31. See Tex. R. App. P. 47.1.
32. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
33. C.H., 89 S.W.3d at 27.
34. Id.
35. Id.