Affirmed and Memorandum Opinion filed July 16, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-09-00061-CV
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IN THE INTEREST OF K.L.B., A CHILD
On Appeal from the 74th District Court
McLennan County, Texas
Trial Court Cause No. 2007-2164-3
M E M O R A N D U M O P I N I O N
Appellant, Shinnequa= Crawley, appeals from the termination of her parental rights to K.L.B., a child. A jury found that four separate grounds supported termination and that termination was in the child=s best interest. On appeal, Crawley does not contest the termination of her rights to K.L.B. but instead challenges the sufficiency of the evidence to support two of the grounds for termination: (1) that she knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well‑being of the child, and (2) that she 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. See Tex. Fam. Code ' 161.001(1)(D), (E). Crawley attacks these particular grounds because they could potentially lead to termination of her parental rights to her other children. See id. ' 161.001(1)(M). We affirm.
Transfer
Pursuant to section 73.001 of the Texas Government Code, the Texas Supreme Court has transferred this cause from the Tenth Court of Appeals to the Fourteenth Court of Appeals. Tex. Gov=t Code ' 73.001. When a case is transferred under section 73.001, the transferee court is to apply the precedent of the transferor court Aif the transferee court=s decision otherwise would have been inconsistent with the precedent of the transferor court.@ Tex. R. App. P. 41.3.
In In re S.N., the Tenth Court held that an appellant in a parental termination case has a due process right to review of termination grounds, when those grounds may be used to terminate the appellant=s rights to other children not subject to the action then before the court, even though the termination at issue is supported by other independent grounds. 272 S.W.3d 45, 61 (Tex. App.CWaco 2008, no pet.). Appellant has not asked this court to reverse the trial court=s judgment, but rather has requested modification of the trial court=s order to delete the findings basing termination on violations of subsections (D) and (E) of Family Code section 161.001(1). She argues that those findings may affect her rights to other children in the future under subsection 161.001(1)(M). Although this court has yet to explicitly analyze the issue the Tenth Court addressed in In re S.N., we have previously declined to address the sufficiency of the evidence on additional grounds when just one of several grounds found by the jury in support of termination had sufficient support in the record. See. e.g., In re T.T., 228 S.W.3d 312, 321 n.8 (Tex. App.CHouston [14th Dist.] 2007, pet. denied) (declining to address the sufficiency of the evidence to support findings under subsections 161.001(1)(D) and (E) but also not addressing due process concerns as none were raised).
Under Texas Rule of Appellate Procedure 41.3, we will follow Tenth Court precedent and address Crawley=s issues even though she has not challenged the termination of her parental rights to K.L.B. See Tex. R. App. P. 41.3. This opinion, however, should not be viewed as controlling precedent for future cases arising within our own statutory jurisdiction.
Background
Crawley tested positive for cocaine when she entered the hospital to give birth to K.L.B. Consequently, K.L.B. was removed from Crawley=s custody at the hospital. Although K.L.B. was born prematurely, her treating physician, Dr. Darrell Wheeler, a pediatrician and neonatologist, could not say in his testimony that Crawley=s cocaine use caused the premature birth. Wheeler further explained, however, that Crawley=s cocaine use during pregnancy put K.L.B. at risk for both premature birth and long-term developmental problems. Patrick Brice, an investigator for Child Protective Services, testified that Crawley admitted using cocaine at other times during her pregnancy with K.L.B. Brice further indicated that the places where people go to purchase cocaine tend to be high crime areas and a pregnant woman=s presence in those places would be dangerous to her unborn child.
Crawley testified that she has been addicted to cocaine for ten years, with about two years of sobriety during the middle of that time span. She admitted using cocaine and going to an apartment to purchase cocaine while pregnant with K.L.B. She said that she did not know anyone at the apartment but had heard that cocaine could be purchased there. She further agreed that dealing drugs was a dangerous business and that dealers sometimes have guns. Crawley specifically acknowledged that using cocaine and going to purchase cocaine while pregnant with K.L.B. endangered the unborn child. Additional testimony provided further details regarding Crawley=s cocaine addiction and demonstrated her failure to comply with provisions in a court order concerning the potential return of K.L.B. to her care.
At the conclusion of the trial, the jury found that all four grounds presented in the charge supported termination of Crawley=s parental rights, including that Crawley: (1) failed to comply with the provisions of a court order establishing the actions necessary for return of the child; (2) used a controlled substance in a manner that endangered the health or safety of the child; (3) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well‑being of the child; and (4) 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. The jury also found that termination of Crawley=s parental rights was in K.L.B.=s best interests. In its final decree, the trial court terminated Crawley=s rights in accordance with the jury=s findings.
Discussion
In her two issues, Crawley contends that the evidence was legally insufficient to support the jury=s findings that she (1) knowingly placed or knowingly allowed K.L.B. to remain in conditions or surroundings which endangered the child=s physical or emotional well‑being; and (2) engaged in conduct or knowingly placed K.L.B. with persons who engaged in conduct which endangered the child=s physical or emotional well‑being. These grounds for termination are found, respectively, in subsections (D) and (E) of section 161.001(1) of the Texas Family Code. Tex. Fam. Code ' 161.001(1)(D), (E). As explained above, Crawley challenges these grounds for termination because they could be used to terminate her rights to her other children under section 161.001(1)(M) of the Family Code. Id. ' 161.001(1)(M).
In conducting a legal sufficiency review in the parental rights termination context, we examine all of the evidence in the light most favorable to the finding, giving due deference to the factfinder=s conclusions and resolving disputed facts in favor of the finding if a reasonable factfinder could have done so. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). If we determine that no reasonable factfinder could have formed a firm belief or conviction that the finding in question was true, then the evidence is legally insufficient. Id.
Crawley=s only argument regarding sufficiency of the evidence posits that a proper statutory construction of section 161.001 does not contemplate conduct or conditions occurring during pregnancy. In other words, according to Crawley, evidence of conduct or conditions occurring during her pregnancy with K.L.B. does not support a finding under either subsection (D) or (E). While Crawley acknowledges that numerous courts have held that conduct or conditions occurring during pregnancy can be used to establish the requisites for termination under subsections (D) and (E), she argues that none of these courts has properly analyzed the statutory language. See, e.g., In re T.N.S., 230 S.W.3d 434, 438-39 (Tex. App.CSan Antonio 2007, no pet.) (discussing relevance of pre-birth conduct and conditions under subsections (D) and (E)); In re S.P., 168 S.W.3d 197, 203-04 (Tex. App.CDallas 2005, no pet.) (same); In re M.N.G., 147 S.W.3d 521, 535-36 (Tex. App.CFort Worth 2004, pet. denied) (discussing relevance under subsection (E)); In re J.T.G., 121 S.W.3d 117, 125-27 (Tex. App.CFort Worth 2003, no pet.) (discussing relevance under subsections (D) and (E)).
More specifically, Crawley maintains that if the legislature had intended for subsections (D) and (E) to apply to conduct or conditions occurring during pregnancy, it would have expressly so stated in section 161.001. She cites examples of other statutory provisions, both within and without the Family Code, wherein the legislature has used terms such as Aunborn child@ and Afetus@ when it intended the particular provision to apply to those classes. See, e.g., Tex. Penal Code ' 1.07(26) (defining A[i]ndividual@ to include Aan unborn child at every stage of gestation from fertilization until birth@); Tex. Health & Safety Code ' 87.001(1) (defining A[b]irth defect@ to include Aimpairment in a human embryo, fetus, or newborn@). In short, Crawley argues that because subsections (D) and (E) use Achild@ and not Afetus@ or Aunborn child,@ conduct or conditions occurring during pregnancy cannot be used to establish the termination requirements contained in those subsections.
Crawley=s argument fails for at least two reasons: (1) by its own express language, chapter 161 of the Family Code applies to unborn children, and (2) conduct and conditions occurring during pregnancy can in fact endanger a child=s well-being. Family Code Chapter 161 is entitled ATermination of the Parent-Child Relationship,@ and it contains provisions detailing the possible grounds for termination as well as provisions governing termination procedures. Tex. Fam. Code ' 161.001-.211. Section 161.001 provides the majority of the grounds on which termination may be based. Id. ' 161.001. Section 161.102 authorizes a suit for termination to be filed before the child in question is born. Id. ' 161.102(a) (AA suit for termination may be filed before the birth of the child.@). When a termination suit is filed before the child is born, the petition must be styled AIn the Interest of an Unborn Child.@ Id. ' 161.102(a). Neither section 161.102 nor any other section of chapter 161 expressly delineates which grounds for termination may be used for unborn children versus children already born. Accordingly, it stands to reason that all of the grounds are applicable either to born or not yet born children, unless clearly inapplicable to one or the other. There is nothing in subsections 161.001(1)(D) or (E) to suggest that the conduct or conditions at issue cannot apply to unborn children. Conduct can endanger the well-being of an unborn child, and an unborn child can be exposed to conditions or surroundings which endanger the unborn child=s well-being. Here, evidence established that Crawley was addicted to cocaine, had used cocaine multiple times during her pregnancy, and had gone to buy drugs in dangerous places while pregnant. See In re T.N.S., 230 S.W.3d at 438-39 (considering mother=s drug use and drug-related criminal activity during pregnancy in upholding termination under subsections (D) and (E)); In re J.T.G., 121 S.W.3d at 125-27 (holding that a mother=s drug use during pregnancy may endanger the child=s well-being and that the parent=s drug addiction, along with the addiction=s effect on the parent=s lifestyle, may also endanger the child=s well-being).
AEndanger@ means to expose to loss or injury; to jeopardize. Tex. Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citing Webster=s New Twentieth Century Dictionary of the English Language 599 (1976)). While it requires more than the mere threat of metaphysical injury, it does not require that actual injury be shown. Id. Evidence establishing a course of conduct endangering the physical or emotional well‑being of the child is sufficient to support termination. Id. at 534. As stated, there was substantial evidence that Crawley was addicted to cocaine, used cocaine multiple times during her pregnancy, and went to dangerous places to purchase cocaine during her pregnancy. K.L.B.=s treating physician testified in some detail regarding the potential after-birth effects of prenatal drug abuse, and Crawley herself testified that her conduct and the conditions she was exposed to during pregnancy endangered K.L.B.
For the foregoing reasons, we reject Crawley=s argument that under a proper statutory construction, section 161.001 would not apply to conduct or conditions occurring during pregnancy. Crawley does not make any further arguments either regarding the proper interpretation of section 161.001 or the sufficiency of the evidence to support the jury=s findings on the grounds derived from subsections 161.001(1)(D) and (E). Accordingly, we overrule Crawley=s two issues.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Yates and Frost.