In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-04-00131-CV
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IN THE INTEREST OF E.J.P., A CHILD
On Appeal from the County Court at Law
Bowie County, Texas
Trial Court No. 03C0179-CCL
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
James Peters and Jamie Peters appeal from the termination of their parental rights to E.J.P., a child now three and one half years old. The child, at the age of thirteen months, was taken into custody in February 2003 by the Texas Department of Protective and Regulatory Services (DPRS).
The Peters argue that the trial court erred in terminating their parental rights because the evidence was legally and factually insufficient to justify termination and erred in finding that termination was in the best interest of the child.
I. Factual Background
The inception for the filing of this particular case occurred in February 2003, when James, while walking down the street carrying E.J.P. on a cold, wet day, was arrested after James had attempted to use the telephone at a stranger's house. The occupant of the house called police, who determined James was acting extremely strangely. James was arrested for public intoxication. The police found James talking wildly and saying his wife had put something in his drink. The deputy then contacted Jamie, whom he described as appearing to be under the influence of a narcotic. When Jamie refused to allow the deputy to enter her house, he called DPRS to take custody of the child. James testified his actions were caused by his use of painkillers after dental surgery, together with a dose of Nyquil, which were set out for him by his wife. A drug test of James conducted a few days later showed both methamphetamine and marihuana in his system.
DPRS was already familiar with the Peterses. E.J.P. was born December 27, 2001. In November 2001, an incident occurred at the Peterses' home that caused both James and Jamie to be arrested. According to Jamie, she allowed a friend to come to her house, ostensibly for the purpose of taking a shower and doing some laundry. Instead, the friend set up a "meth lab" in the house, which police raided. The friend, Jamie, and James were arrested. Both Jamie and James denied any knowledge of the "meth lab" and were never prosecuted. However, both were arrested, and Jamie was released shortly before giving birth to E.J.P., while James remained in jail for several more months.
Jamie acknowledged she is a drug addict. She testified she had smoked marihuana for over thirty years and had used methamphetamine on a weekly basis. She believes she now has the drug problem under control. Recent history confirms the drug problem. In February 2001, she was convicted of possession of marihuana and placed on community supervision. One of the conditions of her supervision was that she submit to drug testing. A motion to revoke her community supervision was filed. At the revocation hearing, Jamie pled true to the use of drugs and that the drug testings in March and April 2001 were positive for methamphetamine and positive for cocaine October 18, 2001. She also had positive drug tests for marihuana in April and May 2001. As a result, her community supervision was revoked in February 2002, and she was ordered to serve ninety days in jail. These results show that Jamie was using illegal drugs during the time she was pregnant with E.J.P. She testified she knew the drugs could be harmful to the child. It was uncontested that E.J.P. had drugs in his system when he was born. James testified that Jamie told him differing stories regarding how this might have occurred, including that, while she was in labor, someone had given her a "joint" with methamphetamine in it. It appears that DPRS had previously taken custody of E.J.P. shortly after his birth, and he was returned to James in May 2002 after he got out of jail for the "meth lab" incident and while Jamie was in a drug rehabilitation center. Then, in February 2003, this incident (James taking E.J.P. from the home while appearing intoxicated) occurred, causing DPRS to again take custody of E.J.P.
James also had a history of drug abuse, although his drug abuse primarily occurred many years ago. He acknowledged that, during the 1960s and 1970s, he used a long list of controlled substances. He entered a drug rehabilitation program in 1977, but shortly after completion, he was sent to prison for possession of phencyclidine and for forgery. James testified he had not used drugs for many years.
II. Standard of Review
The standard of review in parental rights' termination proceedings is clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). The evidence is clear and convincing when the proof is such that it produces in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established by the State. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002).
a. Legal Sufficiency
In reviewing the legal sufficiency of the evidence, we view all the evidence in a 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. J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Looking at the evidence in the light most favorable to the judgment means we must assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266.
b. Factual Sufficiency
When reviewing a factual sufficiency challenge to a parental rights' termination, we consider the evidence the fact-finder could reasonably have found to be clear and convincing. See id.; C.H., 89 S.W.3d at 25–26. In applying this standard to a trial court's findings, we ask whether there was sufficient evidence presented to produce in the mind of a rational fact-finder a firm belief or conviction as to the truth of the allegations sought to be established. In re N.R., 101 S.W.3d 771, 774 (Tex. App.—Texarkana 2003, no pet.).
III. Requirements for Termination
The State's fundamental interest in parental rights' termination cases is to protect the best interest of the child. Tex. Fam. Code Ann. § 153.002 (Vernon 2002); In re B.L.D., 113 S.W.3d 340, 353–54 (Tex. 2003). A court may order involuntary termination only if the court finds that: (1) a parent has committed a predicate act or omission harmful to the child, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; B.L.D., 113 S.W.3d at 353–54. This interest is aligned with another of the child's interests—an interest in a final decision on termination so that adoption to a stable home or return to the parents is not unduly prolonged. In re M.S., 115 S.W.3d 534, 547–49 (Tex. 2003); In re R.I.S., 120 S.W.3d 502, 503 (Tex. App.—Texarkana 2003, no pet.).
a. Pattern of Parents' Conduct
James and Jamie take the position that DPRS sought to terminate based on the February 2003 incident resulting in the arrest of James and DPRS taking custody of E.J.P. They therefore focus the first portion of their insufficiency argument on the situation presented when James was arrested. It is argued that the facts show only that James was arrested by police one Sunday morning, while walking down a street in a cold rain with the infant wrapped in a blanket. They acknowledge that James was acting strangely, but argue that the reason for his behavior was the prescribed narcotic medication he was using following dental surgery, mixed with an alcohol-based sleep aid (Nyquil). It is true that, even though James was arrested for public intoxication, no charges were ever pursued.
We recognize this case is not restricted to a single act by either party, although it is clear this event triggered this proceeding. However, the DPRS' allegations seeking termination concern much more than this one event, as did the evidence presented at trial. In its findings, the trial court specified Section 161.001(1)(D), (E), (N), and (O) of the Texas Family Code as the grounds for termination for both parents and additionally specified Section (P) as to Jamie. Only one statutory ground is required to terminate parental rights. In re N.R., 101 S.W.3d 771 (Tex. App.—Texarkana 2003, no pet.). Having found Section 161.001(1)(E) to be dispositive, we will discuss only that issue.
b. Endangered by Parents' Conduct
Section 161.001(1)(E) of the Texas Family Code addresses whether the child was endangered and focuses exclusively on the parent's conduct. Under that section, proof that the parent's course of conduct endangered the child's physical or emotional well-being is sufficient. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re S.F., 141 S.W.3d 774, 777 (Tex. App.—Texarkana 2004, no pet.); In re S.H.A., 728 S.W.2d 73, 83–84 (Tex. App.—Dallas 1987, writ ref'd n.r.e.). This conduct must be more than a threat of a metaphysical injury of the possible ill effects of a less than ideal family environment. However, the child does not need to suffer actual physical injury to constitute endangerment. Boyd, 727 S.W.2d at 533. Rather, endangerment means to expose to loss or injury; to jeopardize. Id.
1. Jamie
Has Jamie engaged in conduct that endangered E.J.P.? Jamie used drugs when she was pregnant with E.J.P., which resulted in drugs being in his system at birth. The use of drugs during pregnancy may be conduct which endangers the physical or emotional well-being of the child. Edwards v. Tex. Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ) (citing Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ)). Additionally, one month before E.J.P. was born, a friend of Jamie came to the Peterses' home and constructed a "meth lab." Jamie testified she was completely unaware of the friend's intention to install a "meth lab" in her home. It is further true Jamie was not prosecuted for the criminal offense. However, the trial court is allowed to judge the credibility of witnesses and believe or disbelieve their testimony. Jamie's explanation was that a friend came to her house and, without Jamie's knowledge, set up a "meth lab" while she was present. Apparently, during this time, the police obtained information that the "meth lab" was to be established there, raided it, and arrested Jamie, James, and the friend. The trial court could have disbelieved Jamie's explanation that she was completely duped. The records presented into evidence showed Jamie was convicted of possession of marihuana and, while on community supervision, she tested positive for drug usage several times. Some of these positive tests occurred during the time Jamie was pregnant with E.J.P. As a result of her drug usage, Jamie was required to serve ninety days in jail. The drug test performed in February 2003 was positive for marihuana, but a later test in May 2003 was negative. The record establishes she took drugs while she was pregnant. At one time, Jamie explained that, during labor, someone had given her a "joint" laced with methamphetamine. She also testified that another test was positive because she accidentally ingested marihuana from brownies her neighbor prepared. These explanations were subject to a credibility analysis, and the trial court was not required to believe the explanations. We find the evidence clearly and convincingly supports a finding that Jamie's conduct endangered E.J.P.
2. James
Most of the evidence of James' drug usage is not as recent. He was heavily involved in drug usage during the 1960s and 1970s and completed a drug rehabilitation program. However, the incident that triggered the filing of this case is not so easily explained. James and Jamie swear that James did not take any drugs, other than prescription medications due to oral surgery, and Nyquil, on the day of the incident. The explanation was contradicted by a drug test taken a few days after he was arrested, which was positive for methamphetamine and marihuana. Clearly, James' actions on the day he took his son out in the cold, wet weather were unusual and erratic. However, we do not decide a case concerning termination of parental rights based on an isolated event. More important is a pattern of conduct. Other factors deserve our attention.
James is a long-haul truck driver, who necessarily left E.J.P. with Jamie. There is evidence she irregularly engaged in a much wider range of inappropriate drug-related behavior than did James. James was aware that E.J.P. was born with drugs in his system, that Jamie had several positive drug tests for marihuana, methamphetamine, and cocaine, that a "meth lab" was set up in their house by her friend, and that Jamie had been required to serve ninety days in jail for violating the terms of community supervision that she not consume any drugs. One parent's drug-related endangerment of the child may be imputed to the other parent. Edwards, 946 S.W.2d at 138 (citing In re Guillory, 618 S.W.2d 948, 951 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ)). This evidence of Jamie's past behavior and apparent inability to abstain from the use of unlawful drugs is evidence from which the trial court could conclude she had engaged in conduct that endangered the physical or emotional well-being of the child. It is also evidence that James, who knew of such conduct, had knowingly left the child with Jamie, who continually engaged in the use of unlawful drugs. There is further evidence James used drugs, as shown by his unusual behavior with E.J.P., which precipitated the police being called and which was verified by a drug test. We find this evidence sufficient under the clear and convincing standard to support the trial court's order of termination as to James.
IV. Best Interest of the Child
James and Jamie also contend there is insufficient evidence to support the conclusion that termination was in the best interest of the child. That portion of our review proceeds from the policy-based presumption that the best interest of a child is usually served by preserving the parent-child relationship. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); see Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). In determining the child's best interest, the fact-finder may consider the current and future physical and emotional needs of the child, the current and future physical and emotional danger the child may confront with his or her parent, and the parental abilities of the individual seeking custody. The case of Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), sets out the following list of nonexclusive factors to consider when determining the best interest of a child: (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.
Factors 8 and 9 have been fully discussed previously. There is no evidence concerning factors 1 and 2. We will discuss the issues that have the most relevance in this case: factors 3, 4, 5, 6, and 7.
Heather Huckabee, the DPRS representative, and Kim Griffin, the Court-Appointed Special Advocate (CASA) worker, each testified that she believed termination was in the best interest of the child.
Factor 3—The emotional and physical danger to the child now and in the future. One difficulty is the ongoing drug problem of Jamie, coupled with the absence of James due to his job, which would result in some lack of ability to assist Jamie with her drug problems. Additionally, for whatever reason, the facts are that E.J.P. has lived with his parents for only seven months of his now forty-four-month life. Certainly, an emotional strain would be caused if the child were required to leave the home he has known for more than two and one half years of his life.
Factor 4—The parental abilities of the individuals seeking custody. Very little evidence was presented on this issue as to the parenting skills of James and Jamie. The previous section discussed drug usage, which impacts negatively on the ability of any parent to care for his or her child.
Factor 5—The programs available to assist these individuals to promote the best interest of the child. One of the DPRS' complaints was that James and Jamie did not cooperate with DPRS concerning the programs offered to them. James and Jamie and the DPRS testimony conflicted on whether the Peterses completed many of the programs offered—e.g., counseling—Huckabee testified that they had not completed counseling, but Jamie testified she had attended as required. Parenting classes—Huckabee thought Jamie had not completed the classes, but Jamie said DPRS had decided not to require the classes because she had previously taken them. Visitation—James did not see the child for nine months, and there was disagreement on whether scheduling changes caused the lack of visitation. Overall, the programs offered to the Peterses did not appear to accomplish the objective sought.
Factor 6—The plans for the child by these individuals or by the agency seeking custody. E.J.P.'s foster parents intervened in this case and are seeking custody and ultimately the opportunity to adopt E.J.P. Griffin, the CASA worker assigned to consider only the best interest of the child, testified the child's best interest would be the termination of the parental rights to allow the child to establish a permanent home. Huckabee testified she had no concerns about the parenting ability of the foster family. That a family wishes to adopt the child and assume the parental responsibilities may also be considered in determining the best interest of the child. See In re B.B., 971 S.W.2d 160, 169–70 (Tex. App.—Beaumont 1998, pet. denied); Trevino v. Tex. Dep't of Protective & Regulatory Servs., 893 S.W.2d 243, 252 (Tex. App.—Austin 1995, no writ). E.J.P. has lived with his foster parents since February 2003. According to Griffin, E.J.P. had, at the time of the trial, been in foster care for twenty-four of the thirty-one months of his life.
Factor 7—The stability of the home or proposed placement. Another problem is the current lack of a home. For the last four months, Jamie had accompanied James on his long-haul truck driving trips and they lived in the truck. James testified that he had a place to live in Fairlawn, Ohio, and that Jamie lived in Texarkana, but he did not know her address. He testified they planned to move near James' father's home in Ohio. James' father had intervened in this case requesting that he be granted custody of E.J.P. A social study was ordered concerning his home, and the recommendation was that such a placement should not occur for at least six months unless significant work was done by Mr. and Mrs. Peters (James' father and stepmother) to establish a bond with the child. It is also significant that, for a period of at least nine months, James did not visit E.J.P.
V. Conclusion
There is evidence of long-term drug use and of Jamie's repeated return to the use of drugs. There is evidence that James left E.J.P. in Jamie's care, despite knowing about her use of drugs. There is evidence that Jamie was on drugs when E.J.P. was born and that E.J.P. had drugs in his system at birth. James did not visit E.J.P. for almost nine months. The record shows that James and Jamie blamed DPRS for their troubles and demonstrates that they were inconsistent in their attempts to correct the problems that endangered the child's well-being.
Under these facts, we conclude that there is clear and convincing evidence to support the termination and also conclude that termination was in the best interest of the child.
We affirm the judgment.
Jack Carter
Justice
Date Submitted: August 2, 2005
Date Decided: September 7, 2005