COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-342-CV
IN THE INTEREST OF A.L.W.,
MINOR CHILD
------------
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
Introduction
Appellant C.L.W. appeals the trial court’s order terminating her parental
rights to her daughter, A.L.W. In her first six points, appellant argues that the
evidence is legally and factually insufficient to support any of the three
statutory grounds for termination pleaded by the Texas Department of Family
and Protective Services (TDFPS). See T EX. F AM. C ODE A NN. § 161.001(1)(D),
1
… See T EX. R. A PP. P. 47.4.
(E), (O) (Vernon Supp. 2007). Appellant also argues that the trial court erred
in overruling her objection to the State’s standing to contest her indigency for
purposes of appointment of appellate counsel.
Background Facts
In January 2006, appellant admitted that she had done
methamphetamines, while on probation for felony auto theft. In March 2006,
appellant discovered that she was pregnant. A.L.W . was born ten weeks
premature on July 29, 2006. On August 31, 2006, TDFPS received a referral
alleging that appellant had physically abused A.L.W. On September 11, 2006,
TDFPS removed A.L.W. while A.L.W. was still in the hospital because of the
referral and appellant’s history of drug abuse. Appellant’s other two children,
C.L. and C.D., had been removed in June 2005 because of appellant’s drug use
and neglectful supervision.2 TDFPS placed all of the children with appellant’s
father Roger. 3
2
… In December 2006, the trial court signed the final order in C.L.’s and
C.D.’s case and appointed appellant’s father, Roger W., as the boys’ primary
managing conservator and appellant as possessory conservator.
3
… A.L.W.’s alleged father, C.M.L., could not be located and did not
appear at trial. The trial court terminated his parental rights on September 14,
2007. He did not appeal that order.
2
In May 2007, doctors diagnosed A.L.W. with cerebral palsy. She will
probably never be able to walk, talk, or care for herself. She has difficulty
eating because of a high palate and muscular problems in and around her
mouth. In addition, A.L.W. requires special assistance and equipment to bathe.
She is unable to sit up and will continue to struggle with other basic life skills.
A.L.W. has extensive muscle problems and requires constant attention.
In November 2006, appellant again tested positive for drugs after a hair
follicle test. In January and February 2007, appellant admitted to using drugs,
and urinary analysis (UA) and hair follicle tests confirmed that she was positive
for both methamphetamines and cocaine. In the early morning hours of
February 22, 2007, police arrested appellant for public intoxication after she
became drunk and got in a fight with a girl at a bar. Appellant missed her
TDFPS hearing later that day and spent three months in jail.
On March 18, 2007, while appellant was in jail, A.L.W. went to live with
appellant’s half-sister, Penny G., in Colorado. Although TDFPS had initially
placed A.L.W. with Roger, he gave A.L.W. to appellant’s mother, Sandra T.,
without telling TDFPS. Sandra then sought to have A.L.W. placed with Penny.
Penny and her husband were state troopers, and they had three children. They
welcomed A.L.W. into their home and provided her with therapy and medical
care. Penny wanted to adopt A.L.W.
3
On May 13, 2007, appellant was released from jail. By June 2007,
appellant had not participated in out-patient drug treatment or counseling,
attended Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings,
or submitted to random drug tests.
The termination bench trial was held on July 25 and September 14,
2007. Shelby Johnson, a TDFPS caseworker assigned to appellant’s case since
August 2006, testified that appellant had a pattern of not taking an active role
in her service plan until TDFPS reached the point of terminating her parental
rights. For example, in C.L.’s. and C.D.’s case, appellant would not participate
in her required service plan until she thought she would lose custody of her
sons, and then she would become more serious about completing her program.
Once TDFPS gave custody of C.L. and C.D. to her father, appellant
discontinued her services.
Johnson testified that appellant had two years to complete the services
requested by TDFPS in C.L.’s and C.D.’s case, but appellant had not yet
resolved her issues. Johnson had concerns about appellant’s long-term abilities
as a parent, her pattern of inconsistency, and her refusal to take responsibility
for her actions. Johnson stated that appellant had not done what was needed
to regain full custody of her sons, and unlike A.L.W. they do not have special
needs. Johnson testified that she never received documentation that appellant
4
attended NA or AA meetings. Appellant told Johnson that she did not want to
attend NA meetings because she would see old friends, but Johnson testified
that she did not believe appellant was being honest or serious. Johnson
believed that appellant just did not want to go to the meetings. Johnson
testified that she had worked with appellant for three years and did not believe
anything appellant said because she had consistently lied throughout the case.
Johnson recommended that appellant’s parental rights be terminated based on
her failure to comply with her service plan.
CASA volunteer June Splain, who became involved with appellant’s case
in October 2006, testified regarding appellant’s employment. She stated that
she was unable to verify three of appellant’s previous places of employment.
Additionally, Splain never received any documentation from appellant regarding
her employment or her AA or NA classes. Splain testified that appellant
completed parenting classes and a psychological evaluation, but appellant did
not complete the follow-up requirements of the psychological evaluation or
comply with the counseling order. Splain also testified that A.L.W. needed a
home with stability, consistency, nurturing, and love, which appellant had not
been able to provide but Penny had. Additionally, Splain testified that appellant
and Roger were in denial about A.L.W.’s condition and disagreed that she had
needed therapy immediately. Appellant did not understand the type of daily
5
care and therapies that A.L.W. required. Splain stated that appellant was not
in compliance with her service plan and did not have the required skills to care
for A.L.W. She believed that it was in A.L.W.’s best interest for appellant’s
parental rights to be terminated.
Nicole Jordan testified that she had been appellant’s NA sponsor for two
weeks and that appellant had been clean for six or seven months. She stated
that they talked on a daily basis. She believed that appellant wanted to
succeed and that she was a protective and caring mother. She testified that
she had seen changes in appellant, such as more love and compassion.
Appellant’s father, Roger, testified that he had seen dramatic changes in
appellant’s life; for example, she did not have an attitude anymore, and she was
not aggressive. He testified that appellant was more understanding with her
sons and not as selfish. He also stated that appellant needed more time to
make additional changes, but she was headed in the right direction.
Appellant’s mother, Sandra, testified that appellant had sporadically lived
with her until January 2006 when Sandra told her to move out because
appellant was staying out all night. She stated that they had not always had
a good relationship and that appellant had been angry, but appellant had
changed in the last three months. Sandra testified that appellant was no longer
angry, was more focused and relaxed, and had apologized for the past.
6
Appellant’s relationship with C.L. and C.D. had also changed; for example,
appellant interacted with them much better, and they seemed happy with her.
Sandra testified that she had never seen a change like this in appellant, and she
would not be testifying in court if she did not think appellant had changed.
Sandra believed that appellant needed more time but that she was finally going
in the right direction.
Sandra’s husband and appellant’s stepfather, Gary T., agreed with Sandra
and testified that appellant had recently become a much better parent. He
stated that appellant was more level, balanced, and had taken responsibility for
her actions. Because he was also a former drug addict, Gary testified that
when appellant cut ties with her drug friends, he knew that she was serious.
Gary also testified that appellant needed more time to make these changes.
Kade Wall, appellant’s boyfriend, testified that they had been together
since February 2007. He stated that he had seen changes in her temperament;
for example, she does not fight with her family anymore. Wall testified that he
and appellant had plans for a long-term relationship and planned to buy a house.
He also testified that appellant had not had any contact with her drug friends
and made a lot of progress. He stated he was prepared to take care of A.L.W.
if something happened to appellant.
7
After Wall’s testimony, the trial court recessed until appellant’s counselor
could testify. The trial court reconvened on September 14, 2007. Michelle
Greer, a professional counselor, testified that appellant began seeing her in
February 2006. She stated that she and appellant had met for fourteen
sessions and that she had last seen appellant in August 2007. Greer testified
that appellant had not been sober for the required six to eight months but that
she had made progress. However, Greer also believed that appellant could not
maintain sobriety outside of jail and could not care for A.L.W. Additionally,
Greer testified that appellant had not accepted responsibility for her actions and
was at risk for relapsing as she had done previously.
The trial court determined that appellant (1) knowingly placed or
knowingly allowed A.L.W. to remain in conditions which endangered her
physical and emotional well-being, (2) engaged in conduct or knowingly placed
A.L.W. with persons who engaged in conduct which endangered her physical
or emotional well-being, (3) failed to comply with provisions of her service plan,
and that (4) termination was in A.L.W.’s best interest. See T EX. F AM. C ODE
A NN. §§ 161.001(1)(D), (E), (O) & (2). Appellant timely filed this appeal.
8
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.” 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 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. T EX. F AM. C ODE
A NN. § 161.206(b) (Vernon Supp. 2007); 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 E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth
2007, 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
9
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). 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. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
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. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). 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.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
Legal sufficiency
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
10
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
We must also disregard all evidence that a reasonable fact-finder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could, and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
Factual sufficiency
In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
11
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the parent violated subsection (D) or (E) of section
161.001(1) and that the termination of the parent’s parental rights would be
in the best interest of the child. C.H., 89 S.W.3d at 28.
Endangerment Findings
In appellant’s first through fourth points, she argues that the evidence is
legally and factually insufficient to support the trial court’s determination that
she (1) knowingly placed or knowingly allowed A.L.W. to remain in conditions
or surroundings that endangered her physical or emotional well-being and (2)
engaged in conduct or knowingly placed A.L.W. with persons who engaged in
conduct that endangered her physical or emotional well-being. See T EX. F AM.
C ODE A NN. § 161.001(1)(D), (E).
Endangerment means to expose to loss or injury, to jeopardize. Boyd,
727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
W orth 2003, no pet.). Under subsection (D) of family code section
161.001(1), we must examine the evidence related to the environment of the
child to determine if the environment was the source of the endangerment to
the child’s physical or emotional well-being. J.T.G., 121 S.W.3d at 125; In re
D.T., 34 S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet. denied).
Conduct of a parent in the home can create an environment that endangers the
12
physical or emotional well-being of a child. J.T.G., 121 S.W.3d at 125; In re
W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For
example, parental and caregiver illegal drug use and drug-related criminal
activity support the conclusion that the child’s surroundings endanger her
physical or emotional well-being. J.T.G., 121 S.W.3d at 125.
Under subsection (E), we must determine 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. Id. Additionally,
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. T EX. F AM. C ODE A NN. § 161.001(1)(E); D.T., 34 S.W.3d at
634. However, it is not necessary that the parent’s conduct be directed at the
child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G.,
121 S.W.3d at 125.
To determine whether termination is necessary under subsection (E),
courts look to parental conduct before and after the child’s birth. J.T.G., 121
S.W.3d at 125; In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001,
no pet.). A mother’s drug use during pregnancy may amount to conduct that
endangers the physical and emotional well-being of the child. J.T.G., 121
S.W.3d at 125; In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002,
13
no pet.). Additionally, drug addiction and its effect on a parent’s life and ability
to parent may establish an endangering course of conduct as well. J.T.G., 121
S.W.3d at 125-26.
Imprisonment alone does not constitute endangering conduct, but it is a
factor that the trial court can consider on the issue of endangerment. Boyd,
727 S.W.2d at 533-34; D.M., 58 S.W.3d at 812. The State, however, does
not need to show that incarceration was a result of a course of conduct that
endangered the child; it only needs to show incarceration was a part of a
course of conduct that endangered the child. D.M., 58 S.W.3d at 812. Thus,
if the evidence, including imprisonment, proves a course of conduct that has
the effect of endangering the child, the requirement of subsection (E) is met.
Boyd, 727 S.W.2d at 533-34; D.M., 58 S.W.3d at 812.
Analysis
The evidence shows that appellant continuously abused drugs, even
during her pregnancy. Appellant began using drugs when she was sixteen and
continued doing drugs until a few months before the trial. Appellant used drugs
before and after TDFPS removed her two sons, C.L. and C.D., while pregnant
with A.L.W., and after TDFPS removed A.L.W.
Additionally, appellant had three years to participate in her service plan
and get drug treatment, but at the time of trial, appellant had just started her
14
drug treatment program, which had been one of TDFPS’s main concerns. The
record demonstrates that although appellant completed in-patient drug rehab,
she did not participate in out-patient treatment. Appellant testified that she
attended NA and AA meetings although she did not provide documentation to
Johnson or Splain. Appellant had maintained street sobriety for two to three
months before trial and testified that she voluntarily took UAs every Monday
and Friday.
The record also demonstrates that appellant did not complete her service
plan or probation requirements, which included securing employment, obtaining
housing, and paying child support. However, appellant testified that she had
completed all of her service plan requirements except for attending NA
meetings five times a week or having a job for the required six months. She
stated that she attended NA and AA meetings from July 2006 until January or
February 2007, but she did not provide TDFPS with any documentation.
Appellant also testified that, at the time of trial, she was involved in intensive
outpatient treatment four times a week and attended NA meetings once a
week.
Appellant also testified that she had had a job for the past two months.
She admitted that she had not worked regularly throughout A.L.W.’s case, but
15
she had been working at the 440 Ranch the past two months. At the time of
trial, appellant lived with boyfriend Wall in an apartment. She also got her GED.
Appellant had not paid child support at the time of trial, but she testified
that she had the money and tried to make payments but was told that the
account was not set up. However, Johnson testified that she did not know
what appellant was talking about and that appellant had never asked her for
help with the account.4
The record shows that appellant completed parenting classes, although
she did not attend the final review session. Appellant also completed her
psychological evaluation although did not follow through with her doctor’s
recommendations. She also admitted that she violated her service plan by
committing criminal offenses.
Additionally, the record demonstrates that every time appellant used
methamphetamines, she also engaged in criminal activity. As a result of
appellant’s criminal activity, she had been in jail or on probation before and after
A.L.W.’s birth. For example, police arrested appellant for DWI and possession
of methamphetamines in Denton County in January 2003. Appellant received
five years probation for those charges and was placed on house arrest for eight
4
… At trial, the trial judge arranged an order for appellant to pay her child
support to the court’s registry during the afternoon recess.
16
months. On August 19, 2006, police arrested appellant for public lewdness;
the trial court revoked her probation and appellant went to jail until April 2005.
In September 2005, police arrested appellant for felony auto theft. Appellant
received probation and entered an inpatient drug treatment program, but the
trial court revoked her probation when she tested positive for drugs in March
2006. In November 2006, appellant’s hair follicle exam tested positive for
methamphetamines, although appellant testified that she did not use
methamphetamines; she stated that she was in a room where her friends were
using drugs. In February 2007, police arrested appellant for public intoxication
and she spent three months in jail. From A.L.W.’s birth until the time of trial,
appellant had been in jail three months of her twelve-month life for probation
violations.
Appellant’s continuous abuse of illegal drugs threatened A.L.W.’s physical
and emotional well-being. Additionally, A.L.W. suffered from cerebral palsy and
required constant care and supervision. But see In re D.J.J., 178 S.W.3d 424,
429-30 (Tex. App.—Fort Worth 2005, no pet.) (holding evidence insufficient
to prove endangerment because there was no evidence that parent’s drug use
created a dangerous environment). Appellant testified that A.L.W.’s
prematurity was linked to her cerebral palsy, not to appellant’s drug use.
Appellant testified that she had made provisions for A.L.W. at the Scottish Rite
17
Hospital and found a retired nurse to care for her during the day. However,
Penny testified that Roger, Sandra, and appellant told her that although A.L.W.
was born premature, nothing was wrong with her. Penny stated that if A.L.W.
had received therapy before coming to her home, A.L.W. would have been
further along in her development.
Although appellant testified that she needed more time to work on her
life, TDFPS gave appellant longer than most parents to make changes and get
her life in order, but she had continued the same cycle of drug abuse and
criminal activity. The record shows that appellant repeatedly engaged in a
voluntary, deliberate, and conscious course of conduct related to drug use,
criminal activity, unemployment, and instability. T EX. F AM. C ODE A NN.
§ 161.001(1)(D), (E); D.T., 34 S.W.3d at 634.
Based on our review of the entire record, we conclude that a factfinder
could reasonably form a firm belief or conviction that appellant (1) engaged in
conduct that endangered the physical or emotional well-being of A.L.W. and (2)
knowingly placed or knowingly allowed her child to remain in conditions or
surroundings that endangered her physical and emotional well-being. See T EX.
F AM. C ODE A NN. § 161.001(1)(D), (E). Therefore, we hold that the evidence is
legally and factually sufficient to support the trial court’s findings under section
161.001(1)(D) and (E). Id.; see In re S.B., 207 S.W.3d 877, 885 (Tex.
18
App.—Fort Worth 2006, no pet.). We overrule appellant’s first, second, third,
and fourth points.
Failure to Comply with Court Order
In appellant’s fifth and sixth points, she claims that the evidence was
legally and factually insufficient to terminate her parental rights for failure to
comply with the provisions of a court order necessary to obtain the return of
A.L.W. See T EX. F AM. C ODE A NN. § 161.001(1)(O).
Only one finding under section 161.001(1) is necessary to support a
judgment of termination. Id. § 161.001(1); In re K.A.S., 131 S.W.3d 215, 225
(Tex. App.—Fort Worth 2004, pet. denied); D.M., 58 S.W.2d at 813. Because
we conclude that there is both legally and factually sufficient evidence to
support the trial court’s findings under family code section 161.001(1)(D) and
(E), we need not address appellant’s remaining points with respect to the trial
court’s finding under section 161.001(1)(O). T EX. F AM. C ODE A NN.
§ 161.001(1)(D), (E), (O); see T EX. R. A PP. P. 47.1; K.A.S., 131 S.W.3d at 225.
Appellant’s Objection to the State’s Standing to Contest Her Indigency
In her seventh point, appellant argues that the trial court erred in
overruling her objection to the State’s standing to contest her indigency for
purposes of appointment of appellate counsel and a free reporter’s record.
19
Because the trial court found appellant indigent, appointed appellate
counsel, and ordered a free reporter’s record, appellant’s issue on appeal is
moot. Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000).
To avoid issuing an advisory opinion, we do not address appellant’s seventh
point. Id.; see also In re D.D.J., 136 S.W.3d 305, 315 (Tex. App.—Fort Worth
2004, no pet.).
Conclusion
Having overruled all of appellant’s dispositive points, we affirm the trial
court’s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL F: LIVINGSTON, WALKER, and MCCOY, JJ.
DELIVERED: April 17, 2008
20