TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00432-CV
Charles Mincy, Appellant
v.
Texas Department of Protective and Regulatory Services, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 98-05186, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
Charles Mincy appeals a jury verdict terminating his parental rights to a daughter, C.M. The trial court rendered judgment pursuant to the jury's verdict and appointed the Texas Department of Protective and Regulatory Services (the "Department") as permanent managing conservator. In eight issues, appellant challenges the jury findings as legally and factually insufficient. We affirm.
FACTUAL BACKGROUND
In 1993, Mincy met Derloris Clay ("Clay") when he was eighteen and she was pregnant with C.C., her first child. Thereafter, Mincy and Clay lived together. In 1994, Clay learned that she was pregnant with C.M. During the pregnancy, Mincy served six months in a local jail but was released in time to be present for his daughter's birth in September.
Within a month after C.M. was born, Mincy was arrested on four counts of attempted murder. During Mincy's criminal trial for attempted murder, Clay was arrested and jailed for disorderly conduct. A Travis County deputy sheriff observed Clay "dragging" a child out of the courtroom and into a nearby bathroom. The deputy encountered Clay with C.C. in the courthouse bathroom during an investigation of loud yelling, a child's screams, and the sound of spanking. A deputy sheriff arrested Clay for disorderly conduct and delivered the child to Mincy's mother, Linda Askew, who was in the courtroom.
Mincy was acquitted on the murder charges. He pleaded guilty to attempted aggravated assault and was sentenced to one year in jail for which he served six months. He was released in April 1995.
In May 1995, Mincy and Clay were both arrested for assault arising out of a domestic dispute. Mincy entered a plea of nolo contendere and was sentenced to 120 days in jail. In June 1995, Mincy was charged with aggravated robbery with a deadly weapon. He pleaded guilty and was sentenced to ten years in prison.
In September 1995 and April 1996, the Department received its first two referrals alleging that Clay was neglecting and physically abusing C.M. and C.C. At the time of the referrals, Mincy was incarcerated. The Department was unable to substantiate the allegations and the children remained with Clay. After two additional referrals alleging physical abuse by Clay in October 1996 and a third referral in March 1997, the two children and a one-month-old baby, K.C., were removed from Clay's custody. The children were reunited with Clay in October 1997 pursuant to a service plan (1) providing for Clay to receive psychiatric services. After two more referrals in April and May 1998, the three children were removed again. The State placed C.M. with Askew. The Department filed a petition to terminate Clay's parental rights as well as those of Mincy. (2)
In August 1998, Clay was arrested on criminal charges of injury to a child. During the termination trial in February 1999, Clay was incarcerated on charges of injury to a child, theft of a car stereo, and criminal trespass at her daughters' school. Mincy was incarcerated on the conviction for aggravated robbery, a sentence he continues to serve.
The case was tried to a jury, which returned a verdict in favor of termination. The trial court rendered a decree terminating Mincy's parental rights. At the time of trial, C.M. was four years old. From her birth through this appeal, Mincy has been incarcerated for all but three months of his daughter's life. He is due for a first parole hearing in 2001 and will be released in 2005 if required to serve his full sentence.
DISCUSSION
A court may terminate a parent-child relationship if it finds that (1) the parent has engaged in any of the specific conduct enumerated in the Family Code as grounds for termination, and (2) termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2000); Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Here, the Department asserted the following three Code provisions to support the involuntary termination of Mincy's parental rights: (1) Mincy knowingly placed or knowingly allowed C.M. to remain in conditions or surroundings which endangered her physical or emotional well-being; (2) Mincy engaged in conduct or knowingly placed C.M. with persons who engaged in conduct which endangered her physical or emotional well-being; and (3) Mincy constructively abandoned C.M. after the child had been placed in the permanent or managing conservatorship of the Department for not less than six months. See Tex. Fam. Code. Ann. §§ 161.001(1)(D), (E), (N). In addition, the Department urged that termination would be in the best interest of the child. See id. § 161.001(2).
Standard of Review
When reviewing the sufficiency of the evidence, we first examine the legal sufficiency of the evidence. See Segovia v. Texas Dep't of Protective & Regulatory Servs., 979 S.W.2d 785, 787 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). In reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the verdict and disregard all evidence and inferences to the contrary. See id.
Because the termination of a parent-child relationship implicates fundamental constitutional rights, see Spurlock v. Texas Dep't of Protective & Regulatory Servs., 904 S.W.2d 152, 158 (Tex. App.--Austin 1995, writ denied) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)), the State has the burden of proving the necessary elements for termination by "clear and convincing evidence." Tex. Fam. Code Ann. § 161.001; see In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). Under the "clear and convincing evidence" standard, we must consider whether the evidence presented is sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the truth of the facts alleged. See G.M., 596 S.W.2d at 847. Mincy does not contend that the clear and convincing standard of proof warrants a higher standard of review on appeal. See Spurlock, 904 S.W.2d at 155-56; D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ). But see, e.g., Edwards v. Texas Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 136 (Tex. App.-- El Paso 1997, no writ).
Because multiple grounds for termination were alleged by the Department, the jury's verdict will be upheld if the evidence is legally and factually sufficient to support any of the grounds for termination and that the termination is in the best interest of the child. See Edwards, 946 S.W.2d at 135; In re D.L.N., 958 S.W.2d 934, 937 (Tex. App.--Waco 1997, no pet.); see also Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990).
Conduct Sufficient to Justify Termination
Mincy agrees that the evidence is sufficient to support the jury's decision as to Clay, but he urges that it is insufficient to warrant termination of his parental rights. He contends that there is no evidence or insufficient evidence that he (i) knowingly placed or allowed the child to remain in conditions which endangered her physical or emotional well-being, (ii) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child, or (iii) abandoned the child after she had been in the custody of the Department for not less than six months. We disagree.
In his first four issues, Mincy challenges the legal and factual sufficiency of the evidence to support the finding that he knowingly placed or knowingly allowed C.M. to remain in conditions or surroundings which endangered her physical or emotional well-being, or engaged in conduct or knowingly placed the child with persons who knowingly engaged in conduct dangerous to the child's well-being, as described in section 161.001(1)(D) and (E) of the Family Code. See Boyd, 727 S.W.2d at 534. To support a finding under either subsection (D) or (E) of section 161.001(1), the evidence must show the parent engaged in conduct which "endangered" the child's physical or emotional well-being. Under subsection (D), the environment, as opposed to the parent's conduct, must be the source of endangerment to the child. Under subsection (E), the cause of the endangerment to the child must be the parent's conduct alone, including the parent's actions or omissions. Both subsections require knowledge by the parent. See Tex. Fam. Code Ann. § 161.001 (D), (E). It is not necessary that the conduct of the parent be directed at the child or that the child actually suffer injury. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). The danger to the child may be inferred from the parental misconduct. See Boyd, 727 S.W.2d at 533; In re B.R., 950 S.W.2d 113, 119 (Tex. App.--El Paso 1997, no pet.).
Mincy argues that his incarceration alone is legally insufficient to support the jury's verdict that he engaged in conduct that endangered C.M. or that he allowed her to remain in conditions that endangered her well-being. He argues that, because he was incarcerated and unaware of Clay's abusive conduct toward the children, he did not engage in any conduct, nor did he knowingly allow C.M. to remain in conditions, which endangered her well-being.
The evidence showed that C.M. was born on September 23, 1994. Mincy was arrested in October 1994 and remained incarcerated until April 1995. He was again arrested in June 1995 on a new charge and was imprisoned from that date through trial. The first referral to the Department occurred in September 1995--after Mincy's incarceration for the sentence he is now serving.
Imprisonment alone does not constitute conduct sufficient to satisfy section 161.001(1) of the code. See Boyd, 727 S.W.2d at 533 (referencing a previous version of the Code provision); Trevino v. Texas Dep't of Protective and Regulatory Servs., 893 S.W.2d 243, 247 (Tex. App.--Austin 1995, no writ). However, when the evidence, including imprisonment, displays a "course of conduct that has the effect of endangering the physical or emotional well-being of the child, a finding under [§ 161.001(1)(E)] is supportable." Harris v. Herbers, 838 S.W.2d 938, 942 (Tex. App.--Houston [1st Dist.] 1992, no writ). Moreover, if the imprisonment evidences a "voluntary, deliberate and conscious course of conduct, it qualifies as conduct that endangers the emotional well-being of the child." Id. Clearly, in this case, Mincy's incarceration is a factor that the jury could properly consider in reaching its verdict. The jury was entitled as well to consider the nature of the offense for which Mincy is incarcerated and the facts of the offenses for which he was convicted following the birth of his daughter.
The evidence at trial established that Mincy engaged in a pattern of criminal activity immediately before and after the birth of C.M. and that his actions involved violence to other persons. The pattern consisted of an unspecified offense for which Mincy served six months while Clay was pregnant with C.M., three counts of attempted aggravated assault, Class A assault, and aggravated robbery with a deadly weapon.
The aggravated assault conviction stemmed from attempted murder charges for which Mincy was arrested approximately one month after C.M.'s birth. Mincy testified that he was returning home from a friend's home when he encountered a group of individuals he knew, possibly drug dealers, hanging out on a street corner. After exchanging "words," Mincy fired a .38 caliber pistol into the group, injuring four individuals. He was arrested for attempted murder. At trial, Mincy testified that he often carried a weapon because he lived in a dangerous neighborhood. Mincy was acquitted but pleaded guilty to a third-degree felony of attempted aggravated assault with a deadly weapon.
One month after he was released from jail for the assault charge, Mincy committed an assault during a domestic dispute involving Clay and her cousin. While the facts of the incident were disputed, both Mincy and Clay were arrested. Mincy was convicted of assault and served 120 days in jail.
In June 1995, Mincy was arrested for aggravated robbery with a deadly weapon, the offense for which he was incarcerated at the time of the termination trial. He admitted his participation in a robbery in which one of his two codefendants shot a robbery victim with a shotgun. Mincy testified that he was unarmed and that his role was confined to "digging in [the victims'] pockets while everybody else holds the gun." For this offense, Mincy received a ten-year sentence. Barbara Johnson, Clay's aunt and neighbor, testified that during this same time period both Mincy and Clay were selling drugs. Clay sold drugs in the home.
We are thus presented with a series of criminal acts in a short time frame. From October 1994 through June 1995, Mincy was arrested for three crimes of violence. Each of these offenses was an intentional act; two involved a deadly weapon. Mincy committed the acts with the knowledge that he might be imprisoned and thus be unable to provide or care for his family. As one court explained:
It was appellant's voluntary acts which brought about his confinement in the penitentiary. There is no hint in our record that anyone other than appellant was in any degree responsible for appellant's inability to visit with his child or to contribute to her support. Only his course of criminal conduct has prevented his exercising parental authority or making any parental contribution to the child.
Hutson v. Haggard, 475 S.W.2d 330, 333 (Tex. Civ. App.--Beaumont 1971, no writ); see also Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 807 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.) ("Wilful criminal activity with knowledge of a pregnancy and of the consequences of the course of conduct implie[s] 'conscious disregard and indifference' to parental responsibilities."). If the imprisonment of the parent displays a voluntary, deliberate, and conscious course of conduct, a jury may find that it qualifies as conduct that endangers the emotional well-being of the child. See In re W.A.B., 979 S.W.2d 804, 807 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).
Viewing this evidence in the light most favorable to the verdict, we conclude the jury could have properly concluded Mincy knowingly allowed C.M. to remain in conditions which endangered her well-being or that he engaged in a course of conduct which endangered her. We hold the evidence is legally sufficient to support the termination of Mincy's parental rights.
We now consider all the evidence presented at trial to evaluate its factual sufficiency. The Department presented twenty witnesses, including Department investigators, the children's therapists and psychologists, two of Clay's aunts, a detective with the Austin Police Department, Child Protective Services investigators and workers, an emergency room physician, the manager of Clay's apartment complex, Clay's counselor, a family practice resident, the children's foster parent, Clay, and Mincy. Most of the witnesses testified concerning their observations of Clay's abusive behavior and her abuse of the children. The overwhelming evidence at trial established that C.M. was subjected to severe physical and emotional abuse from Clay and that C.M. observed similar abuse of her sisters. In addition to the testimony of her aunt that she sold drugs, Clay tested positive for marihuana use.
Dr. Steve Crow, a family physician at Blackstock Family Health Center, treated C.M. in 1995. He assisted in making a referral to the Department because of his concerns that the children were suffering emotional and possibly physical abuse from their mother. Lucia Cao, an investigator for Child Protective Services, testified that she investigated a referral to the Department in March 1997. C.M. had a swollen, reddish bump and an abrasion on her left eye and marks and discoloration on her legs. C.C. told Cao that Clay had "popped" C.M. on the head with a spoon. Clay explained to Cao that she hit C.M. because she would not eat her food or listen to Clay. C.M., who was holding a spoon in her hand, held her hands in front of her head. When C.M. attempted to block the blow, Clay hit her face with the spoon, causing the injury to the eye area. On another occasion, Clay struck C.M. on the face and body with a belt because she was not eating fast enough. The evidence at trial established that Clay repeatedly hit her children with her hand and other objects and used vulgar language and profanity, calling them "bitches" and "whores." C.M.'s foster mother (3) testified that in 1997 when C.M. was placed in her care, C.M., who was then two years old, exhibited aggressive behavior toward her foster parents and children at her day-care center. She screamed and yelled profanities at her foster parents, calling them "bitches" and "assholes." Of the thirty-six children who had been placed in her care, the foster mother testified that C.M. and C.C. were the most severely disturbed. C.M. also displayed inappropriate sexual behavior. The foster mother further testified that C.M. never spoke of her father and that C.M. received no calls or letters from Mincy.
Mincy contends that, because the referrals occurred after he was incarcerated, he was unaware of Clay's abusive behavior and thus there is no proof that he knowingly allowed C.M. to remain in danger. Mincy lived with Clay for short periods of time early in C.M.'s life. No evidence was adduced to show that Mincy observed the abuse or the drug use. There was, for example, no evidence presented that showed Mincy was aware of the events in the courthouse bathroom that led to Clay's arrest for disorderly conduct.
Mincy testified that Clay brought C.M. to visit him on a weekly basis at a local jail until he was transported to prison in August 1996. From August 1996 through the time of trial, Mincy saw C.M. on only two occasions. Mincy testified that while in prison he communicated frequently with his daughter through letters to his mother, Linda Askew, who had temporary custody of C.M. Although three letters were admitted in evidence, Mincy testified that most of the letters were lost when his mother's house was flooded.
Despite Clay's continuous abuse and unstable conduct through the years, Mincy testified that she was "a good mother," that she never raised her voice or hit the children, and that he never observed any problems. He did not dispute the extensive evidence of Clay's abuse. In light of the nature and extent of Clay's abuse of the children over a long period of time, a jury could reasonably conclude that Mincy was not credible as to his lack of knowledge. The jury is free to judge the weight and credibility of each witness's testimony. See In re P.S., 766 S.W.2d 833, 834 (Tex. App.--Houston [1st Dist.] 1989, no writ).
Before his arrests, Mincy worked for JT Body Shop and for his mother at the Convention Center. Because Mincy has been incarcerated, however, he has been unable to contribute any money to his child's support. To his credit, in prison Mincy is learning to be a cook and is working to obtain his GED. There is evidence that he is trying to change his life.
While there was no evidence that Clay physically abused C.M. or the other children in Mincy's presence, testimony showed that Mincy and Clay were dealing drugs. Based on this testimony, the jury could have rationally concluded that both Mincy and Clay exposed the children to the dangers inherent in the drug trade, including the risks of violence and imprisonment. Given that Mincy testified he often carried a gun and was involved in a confrontation with drug dealers and an altercation with Clay, a jury could rationally conclude that Mincy had knowledge the children were exposed to a dangerous environment. Mincy's inability to provide a stable home for C.M. together with his consistent inability to avoid criminal activity implies a conscious disregard for his parental responsibilities.
We hold that the evidence is factually sufficient to support the termination of the parent-child relationship because the jury could reasonably have concluded that Mincy knowingly allowed C.M. to remain in conditions which endangered her well-being and engaged in a course of conduct which endangered her well-being. We overrule Mincy's first through fourth issues.
Because we have determined that sufficient evidence supports two of the statutory bases the jury found for termination--that Mincy engaged in conduct that endangered the physical or emotional well-being of C.M. and that he allowed her to remain in conditions that endangered her well-being, either of which would support the judgment--we decline to address Mincy's fifth and sixth issues on appeal.
Best Interest of the Child
In his seventh and eighth issues, Mincy contends that there is insufficient legal and factual evidence that termination of his parental rights was in the best interest of C.M. We conclude that there is ample evidence from which a jury could conclude that termination is in the child's best interest. (4)
Due to C.M.'s young age, little evidence was presented of the child's desires concerning termination. The psychologist who examined C.M. diagnosed her with adjustment disorder with a high risk for ongoing mental health problems. He concluded that she had never bonded with her mother and that "not much" bonding could occur with an absent parent whose only contact with the child was for three months during her infancy and through letters from prison. He concluded that C.M. would be able to adjust to a long-term foster home and would benefit from permanent placement. The psychologist also observed that C.M. was relieved to be in the foster home, which he found unusual in such a young child.
Department case workers testified that Mincy's parental rights should be terminated because of his lack of interest and because "he's built a career in the corrections system." Further, investigators for the Department concluded that C.M. did not know Mincy "as a father." They testified that C.M. is in need of a permanent home and that termination is in the child's best interest.
Mincy presented testimony of his future plans to work as a cook and support C.M. after his release from prison. Although Mincy is eligible for parole this year, if he is required to complete his sentence, he will not get out of prison until C.M. is ten or eleven years old. Although the Department initially named Mincy's mother as its preferred choice for C.M.'s adoptive parent, that home is no longer suitable for placement. If Mincy's parental rights are not terminated, the Department may have to serve as C.M.'s conservator for several years, depending on whether Mincy receives parole.
We conclude that there is legally sufficient evidence to support the jury's finding concerning the best interest of the child and that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule Mincy's seventh and eighth issues.
We affirm the district court's judgment.
Jan P. Patterson, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: May 18, 2000
Do Not Publish
1. A Family Service Plan is prepared by the Department and the family. The plan sets goals for the parents to reach in order for the children to be returned home to a safe and stable environment.
2. The Department's petition also sought the termination of Clay's parental rights to the other two children, C.C. and K.C., as well as the parental rights of their natural fathers, Kenneth Rich and Charles Bryant. Charles Bryant, C.C.'s natural father, failed to appear for trial and his rights were terminated. Kenneth Rich, K.C.'s natural father, submitted a sworn affidavit relinquishing his parental rights to K.C. The trial court entered an order terminating the parental rights of Clay, Rich, and Bryant; they are not parties to this appeal. Because only Mincy has appealed the termination order, we will refer to facts relating to Clay only to the extent they are relevant to Mincy.
3. C.M. was in foster care with the same foster parent on two occasions, spanning several months each time. She was first placed in foster care in May 1997; she was reunited with her mother in October 1997. She was removed again in May 1998 and eventually was sent to live with Askew.
4. When determining the best interest of the child, we consider the non-exhaustive list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
G>
In his seventh and eighth issues, Mincy contends that there is insufficient legal and factual evidence that termination of his parental rights was in the best interest of C.M. We conclude that there is ample evidence from which a jury could conclude that termination is in the child's best interest. (4)
Due to C.M.'s young age, little evidence was presented of the child's desires concerning termination. The psychologist who examined C.M. diagnosed her with adjustment disorder with a high risk for ongoing mental health problems. He concluded that she had never bonded with her mother and that "not much" bonding could occur with an absent parent whose only contact with the child was for three months during her infancy and through letters from prison. He concluded that C.M. would be able to adjust to a long-term foster home and would benefit from permanent placement. The psychologist also observed that C.M. was relieved to be in the foster home, which he found unusual in such a young child.
Department case workers testified that Mincy's parental rights should be terminated because of his lack of interest and because "he's built a career in the corrections system." Further, investigators for the Department concluded that C.M. did not know Mincy "as a father." They testified that C.M. is in need of a permanent home and that termination is in the child's best interest.
Mincy presented testimony of his future plans to work as a cook and support C.M. after his release from prison. Although Mincy is eligible for parole this year, if he is required to complete his sentence, he will not get out of prison until C.M. is ten or eleven years old. Although the Department initially named Mincy's mother as its preferred choice for C.M.'s adoptive parent, that home is no longer suitable for placement. If Mincy's parental rights are not terminated, the Department may have to serve as C.M.'s conservator for several years, depending on whether Mincy receives parole.
We conclude that there is legally sufficient evidence to support the jury's finding concerning the best interest of the child and that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule Mincy's seventh and eighth issues.
We affirm the district court's judgment.
Jan P. Patterson, Justice
Before Justices Jones, Yeakel and Patterson