In The Interest of C.A.B.
Court of Appeals of Texas, Houston (14th Dist.).
*877 Williаm M. Thursland, William B. Connolly, William Leslie Shireman, Houston, for appellants.
Sandra D. Hachem, Angela Moritz Craven, Lan T. Nguyen, Houston, TX, for appellees.
Panel consists of Justices FROST, BROWN, and BOYCE.
OPINION
KEM THOMPSON FROST, Justice.
This case is an accelerated appeal from a trial court's judgment terminating both a *878 mother's and a father's parental rights to a minor child and granting the child's maternal great-grandparents joint managing conservatorship. The mother and father each claim the evidence is legally and factually insufficient to support the trial court's termination of their parental rights. Each also contests the conservatorship order. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2007, appellant Aja gave birth to her daughter, C.A.B. (hereinafter "Clara").[1] Shortly after Clara's birth, hospital staff contacted the Texas Department of Family and Proteсtive Services (hereinafter the "Department") to report an incident involving Aja's interaction with Clara. Appellant James, Clara's father, was present during the incident. The Department's report concerning the incident provides in relevant part:
On March 28, 2007, the [Department] received a report alleging Physical Neglect and Neglectful Supervision of newborn [Clara] (DOB: 3/28/2007) by the child's mother [Aja].... The report went on to state that hospital staff was concerned as to [Aja's] ability to adequately care for the child after observing [Aja] attempting to force the child to consume ice chips shortly after the infant's birth. The report stated that when [Aja] was confronted by hospital staff regarding her behavior, she stated that she was attempting to "shock" thе infant in order to see the color of the child's eyes. The report further stated that prior to this incident, [Aja] was observed "trying to pry open" the infant's eyes with her hands in an attempt to see the child's eye color. The report continued by stating that [Aja] informed hospital staff that she had three alter [sic] personalities as part of her dissociative identity disorder. The report concluded by stating that hospital staff at UTMB was also concerned in regard to the child's alleged father, [James], as he did not appear protective of his daughter during these incidents.
Two days later, the Department initiated emergency, temporary custody proceedings. The trial court appointed the Department temporary sole managing conservаtor of Clara.
Both parents appeared at a hearing on April 12, 2007, during which the trial court appointed the Department as the child's temporary conservator. The trial court ordered both Aja and James to comply with the requirements of any service plan issued during the case. Specifically, the trial court ordered Aja to participate in a psychiatric evaluation and to successfully complete all recommendations. The trial court also ordered both parents to submit to drug tests.[2] The same day, Clara was placed in the physical custody of her maternal great-grandparents, intervenors Betty and Richard. Clara has remained in their care.
Twice, in May 2007 and September 2007, the trial court ordered Aja and James еach to comply with additional temporary orders, including completion of the following programs: (1) substance abuse treatment, (2) psychological evaluations and/or participation in counseling, (3) parenting classes, (4) drug and alcohol assessments and compliance *879 with recommendations of the assessments, and (5) random drug tests. The trial court further ordered each parent to remain drug free, refrain from criminal activity, maintain stable housing and employment, and complete all services outlined in the Department's family service plans.[3]
The Department petitioned the trial court to terminate Aja's and James's parental rights to Clara and to grant Betty and Richard joint managing conservatorship of Clara. The Department citеd a host of grounds in support of termination. Among these was subsection 161.001(1)(E) of the Texas Family Code, for which the Department alleged that Aja and James each "engaged in conduct or knowingly placed the child with person who engaged in conduct which endangers the physical or emotional well-being of the child."
In March 2008, when Clara was just under one year old, the parties presented evidence at a bench trial on the Department's petition for termination. In its closing argument, the Department argued that the trial court should find that both Aja and James had engaged in the conduct listed in subsections 161.001(1)(E), (N), and (O) and that Aja also had engaged in the conduct under subsection 161.001(1)(A).[4] The trial court found by clear and convincing evidence that both Aja and James had engagеd in conduct or knowingly placed the child with persons who engaged in conduct which endangers Clara's physical or emotional well-being under subsection 161.001(1)(E) of the Texas Family Code.[5] The trial court also found that termination of the parent-child relationship between Clara and her parents is in Clara's best interest. Therefore, the trial court terminated both parents' parental rights. In its decree for termination, the trial court also granted Betty and Richard's request to be appointed joint managing conservators of Clara. In this regard, the court found as follows:
Appointment of one or both parents as managing conservators would not be in the best interest of Clara because the appointment would significantly impair Clara's physical health or emotional development.
Appointment of Betty and Richard as Clara's joint managing conservators is in Clara's best interest.
Dismissing the Department as a party to the suit is in the child's best interest.
At a hearing on James's motion for a new trial, James complained of the sufficiency of the evidence to support the trial court's judgment. The trial court denied this motion.[6] James and Aja now challenge the legal and factual sufficiency of the evidence supporting the trial court's termination of their parental rights and appointment of Betty and Richard as joint managing conservators.
*880 II. ISSUES AND ANALYSIS
The Department pleaded numerous grounds for termination under subsection 161.001(1) of the Texas Family Code. Despite the Department's arguments for termination of both parents' rights under subsections 161.001(1)(E), (N) and (O) and, as to Aja, under subsection 161.001(1)(A), the trial court announced at the end of trial that it was terminating Aja's and James's parental rights based only on subsection 161.001(1)(E). Consistent with this pronouncement of judgment, in its written decree for termination, the trial court made the following pronouncement:
7. Termination of [Aja's] Parental Rights
7.1 The Court finds by clear and convincing evidence that termination of the parent-child relationship between [Aja] and [Clara] is in the child's best interest.
7.2 Further, the Court finds by clear and convincing evidence that [Aja] has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to subsection 161.001(1)(E) of the Texas Family Code;
7.3 IT IS THEREFORE ORDERED AND DECREED that the parent-child relationship between [Aja] and [Clara] is finally and forever terminated.
8. Termination of [James's] Parental Rights
8.1 The Court finds by clear and convincing evidence that termination of the parent-child relationship between [James] and [Clara] is in the child's best interest.
8.2 Further, the Court finds by clear and convincing evidence that [James] has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to subsection 161.001(1)(E) of the Texas Family Code;
8.3 IT IS THEREFORE ORDERED AND DECREED that the parent-child relationship between [James] and [Clara] is finally and forever terminated.
As a preliminary matter, we address the Department's argument that, because the trial court did not issue separate findings of fact, as required under Texas Rule of Procedure 299a, the trial court's judgment as to both parents may be affirmed if there is sufficient evidence that would have supported a finding under subsection 161.001(1)(O).[7]
A. Is there an implied finding under subsection 161.001(1)(O)?
The trial court did not issue a separate document containing findings of fact or conclusions of law. Under Texas Rule of Civil Procedure 299a, findings of fact should not be recited in a judgment *881 but should be filed as a separate document. See TEX.R. CIV. P. 299a; see In re A.A.M., No. 14-05-00740-CV,
The Department suggests that a finding as to conduct under subsection 161.001(1)(O) should be supplied by presumption under Texas Rule of Civil Procedure 299. See TEX.R. CIV. P. 299a. The Department cites In re J.F.C., in which the Supreme Court of Texas held that a best-interest finding in support of a termination decree should be deemed under Rule 279. See
B. Is the evidence legally and factually sufficient to support termination of the mother's and father's parental rights?
Because termination of parental rights is a drastic remedy, due process and the Texas Family Code require the Department to prove the necessary elements by the heightened burden of proof of "clear and convincing evidence." See TEX. FAM.CODE ANN. § 161.001 (Vernon 2008); In re B.L.D.,
In reviewing legal-sufficiency challenges to termination findings, we consider all of the evidence in the light most favorable to the termination findings to determine whether a reasonable factfinder could have formed a firm belief or conviction that these findings are true. In re J.L.,
In reviewing the factual-sufficiency challenges to termination findings, we give due consideration to evidence that the factfinder reasonably could have found to be clear and cоnvincing. In re J.F.C.,
1. Is the evidеnce legally and factually sufficient to support a finding of endangerment under subsection 161.001(1)(E)?
In their first issues, Aja and James each contest the sufficiency of the evidence to support a finding of endangerment under subsection 161.001(1)(E). The trial court found that the Department had proven by clear and convincing evidence that both Aja and James engaged in conduct or knowingly placed Clara with persons who engaged in conduct which endangers Clara's physical or emotional well-being. See TEX. FAM.CODE ANN. § 161.001(1)(E). Under subsection 161.001(1)(E), the term "endanger" means the child was exposed to loss or injury or jeopardized. See Tex. Dep't of Human Servs. v. Boyd,
When analyzing a trial court's findings under subsection 161.001(1)(E) with respect to physical endangerment, we determine whether sufficient evidence exists that the endangerment of the child's physical well-being was the direct result of the parent's conduct, which includes both action or inaction that occurred either before or after the child's birth. See In re A.S., D.S., & L.A.S.,
Termination under subsection 161.001(1)(E) must be basеd on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. In re J.W.,
a. Endangerment by the Mother under Subsection 161.001(1)(E)
Regarding the hospital incident on the day Clara was born, the record contains little or no evidence other than the general statements contained in the Department's report, which appears to have been based on a report from the hospital. None of the hospital staff who observed the incident or contributed to the report testified at trial. Nor did the original case worker who filed the report testify. No evidence was presented regarding Aja's mental health or how any mental health issues might impact her parenting of Clara. Moreover, no expert testified as to any potential harm that could have befallen Clara as a result of Aja's actions in "attempting" to give the baby ice chips. The report does not mention the size of the ice chips or indicate how or whether they might have presented a risk of choking or other harm. There is no evidence as to the quantity of ice chips involved or whether Clara actually consumed the ice. No evidence indicates the manner or force, if any, Aja used in attempting to see her newborn child's eyes. There is no evidence of any intent by Aja to harm the child. In light of the undisputed evidence that Aja's sole motivation was not to harm the child but only to see the newborn's eye color, it would not be reasonаble to infer that her actions were intended to cause harm. If any unintended harm resulted, there is no suggestion of it in the record. The Department's report of the hospital incident refers only to Aja's "attempts," and no evidence indicates whether she effectively completed the acts or whether Clara was exposed to any harm, actual or feared, by Aja's actions. No evidence suggests that the child was exposed to any injury or loss or that she was in any manner jeopardized as a result of Aja's conduct at the hospital, especially considering that these actions occurred under the watchful eye of hospital staff. See Boyd,
Termination of parental rights is serious business. Because the law demands clear and convincing evidence of facts supporting termination, we cannot terminate a parent's rights based on strong rhetoric alone. Facts and evidence are essential things. Though the Department argues forcefully for the affirmance of the trial court's termination of this mother's rights on endangerment grounds based on this incident in the hospital, the evidence in the record is legally insufficient. Under the applicable standard of review, we conclude no reasonable factfinder could form a firm belief or conviction that Clara's physical or emotional well-being was endangered by Aja's conduct in the hospital. Therefore, on this record, the evidence at trial did not satisfy the clear and convincing standard as to Aja's alleged endangerment of the child in the hospital.[9]
The Department, however, also points to the following evidence in support of termination based on other conduct:
1. Aja's involvement with illegal drug activity, including a 2002 conviction for possession of marijuana, a 2006 conviction for possession of methamphetamines several months before Clara's birth, Aja's positive test for methamphetamines in April 2007 following Clara's birth as reflected by the caseworker's testimony, and Aja's failure to submit to random drug tests after September 2007 in accordance with the trial court's May 2007 and September 2007 orders;
2. Aja's involvement with James, who has been convicted of crimes, inсluding deadly conduct with a knife against her several months before Clara's birth, assault against another family member after Clara's birth, and other illegal drug and alcohol activities before and after Clara's birth;
3. Aja's conviction in October 2007 for a theft that occurred in July 2007, less than two months after the trial court ordered her to refrain from criminal activity;
4. Aja's failure to regularly visit Clara after October 2007, even though Betty and Richard placed no limitations on her visitation with the child; and
5. Aja's departure from the state after indicating that she planned to return to visit Clara every year or two and relinquish her parental rights.
The record contains no evidence that Aja used illegal drugs while pregnant with Clara or that Aja or Clara tested positive for drugs at the time of Clara's birth.[10] Though Aja hаd a positive drug test two weeks after Clara was placed in the Department's custody, a single incident of drug use while the child is not in the parent's custody does not support an inference of endangerment. See In re A.S., D.S., & L.A.S.,
The Department also points to evidence of Aja's conviction in October 2007, for a theft that occurred in July 2007, for which she was incarcerated for ten days. Aja committed this offense after the trial court previously had ordered her to refrain from criminal activity. At the time of the theft, Aja knew her parental rights were in jeopardy, yet she continued to engage in criminal activity that resulted in being jailed. See Robinson,
b. Endangerment by the Father under Subsection 161.001(1)(E)
Evidence at trial suggests James was present for the incident at the hospital that prompted the Department to intervene on Clara's behalf. However, based on the facts, as described above, and our evaluation of these facts, no evidence from the hospital incident as shown on this record supports a finding of endangerment that rises to the "clear and convincing" standard. See TEX. FAM.CODE ANN. § 161.001(1)(E).
Nevertheless, other evidence establishes that James has engaged in a course of criminal conduct involving violent actions against a family member and against Aja, a person with whom he shared a dating relationship. James has been convicted and incarcerated for this conduct in the two incidents. Though imprisonment, alone, does not support a finding of endangerment, evidence, including imprisonment, that demonstrates a course of conduct that has the effect of endangering the child's physical or emotional well-being supports a finding of endangerment under subsection 161.001(1)(E). See Boyd,
Furthermore, evidence in the record indicates that James has not provided for Clara financially, and he had only temporary living arrangements just before his incarceration. "`[C]onduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.'" In re N.S.G.,
Viewing the evidence in the light most favorable to the judgment, a reasonable factfinder could have formed a firm belief or conviction that James engaged in the conduct described in section 161.001(1)(E). See In re N.S.G.,
2. Is the evidence legally and factually sufficient to support a finding that termination of the parents' parental rights is in the best interest of the child?
In their second issues, Aja and James each challenge the sufficiency of the evidence to support the trial court's findings that termination of Aja's and James's parental rights is in Clara's best interest. In reviewing the sufficiency of the evidence to support a best-interest finding, we examine a number of factors, including (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody in promoting the best interest of the child; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams,
No evidence suggests Clara has any special needs and, at one year old, her desires cannot be determined. See In re N.S.G.,
No evidence indicates that Aja is employed, but Betty indicated Aja was capable of employment. Aja has not provided for Clara's emotional or physical needs beyond purchasing some clothes and a toy. Aja requested that Betty continue to provide a stable home, education, and religious upbringing for Clara. The caseworker and Betty both confirmed that prior to trial Aja expressed a desire to relinquish her parental rights.
Evidence in the record shows that while James visited Clara regularly for several months while she was in the Department's custody, these visits stopped in September 2007. James was incarcerated in November 2007, and released just before the termination proceedings commenсed. James did not appear at the termination proceedings, nor has he indicated that he has any plans for Clara's future, as demonstrated by his failure to complete the requirements of the family service plan ordered by the trial court. Specifically, he did not complete parenting classes or anger-management counseling. James admitted to the caseworker that he tested positive for drugs after Clara's birth, explaining this substance abuse occurred because of his need to relieve stress brought *889 on when Clara came into the Department's care.[12]
Testimony from the child advocate indicated that Clara seemed to be in a good environment with Betty and Richard and has lived with them since she was less than one month old. They are the only caregivers Clara has known. See N.S.G.,
Giving due consideration to the evidence, the trial court reasonably could have formed a firm belief or conviction about the truth of its findings that termination of James's and Aja's parental rights is in Clara's best interest. See In re N.S.G.,
Given the disposition of the first two issues, we do not reach their respective third issues, in which Aja and James challenge the conservatorship of the child.
III. CONCLUSION
Under the applicable standards, the evidence is both legally and factually sufficient to support the trial court's findings regarding termination of Aja's and James's parental rights. Therefore, we affirm the trial court's termination of both parents' parental rights.
NOTES
Notes
[1] To protect the рrivacy of the parties in this case, we identify the child by a fictitious name and the parents and great-grandparents by their first names only. See TEX.FAM.CODE ANN. § 109.002(d) (Vernon 2008).
[2] Evidence indicates that both parents tested positive for narcotics. When a Department caseworker questioned James about testing positive for cocaine use, James admitted he used cocaine, saying he was "stressed out" because the Department removed the child.
[3] The September 2007 orders required completion of no fewer than three random drug tests each month and that each parent maintain stable housing in the same location and employment with the same employer for no less than six months. The September order also required each parent to participate in anger management classes or counseling.
[4] See TEX. FAM.CODE ANN. §§ 161.001(1)(E), (N), (O), (A) (Vernon 2008) (providing for termination on the following grounds respectively: endangerment, abandonment, failure to comply with court orders, and leaving the child with no expressed intent to return).
[5] Unless otherwise specified, all statutory citations in this opinion are to the Texas Family Code.
[6] The record indicates that Aja's motion for new trial was denied before the trial court held a hearing on James's motion for new trial. In her motion Aja also challenged the sufficiency of the evidence.
[7] To the extent that the Department asserts that the trial court erred by failing to terminate the parental rights of Aja and James based on their engaging in conduct listed under subsection 161.001(1)(O), the Department did not properly preserve this issuе by filing a statement of appellate points and a notice of appeal. See TEX. FAM.CODE ANN. § 263.405(i) (Vernon 2008); see Prairie View A & M Univ. v. Dickens,
[8] In addition, even if subsection 161.001(1)(O) were considered an element, the Department requested in its closing argument that the trial court make a finding as to subsection 161.001(1)(O); therefore, this would not be an "unrequested element" subject to a finding by presumption under Rule 299. See TEX.R. CIV. P. 299.
[9] See TEX. FAM.CODE ANN. § 161.001(1)(E); see also In re J.R.,
[10] Furthermore, the Department's own report containing the allegations of the hospital incident also provides that Aja told Department caseworker, Mary Votaw, that her pregnancy limited her medication options prescribed to treat her mental illness. This undisputed evidence undermines any argument that Aja engaged in a course of conduct involving use of illegal drugs that endangered her child's well-being while pregnant. See In re A.S., D.S., & L.A.S.,
[11] James argues that the criminal records were not relevant, contained hearsay, and did not sufficiently link him to the crimes. In this sufficiency review, to the extent James argues the records should not have been admitted, James did not properly preserve this issue for appeal by filing a statement of appellate points. See TEX. FAM.CODE ANN. § 263.405(i) (Vernon 2009) (barring an appellate court from considering any issue not specifically presented to the trial court in either a timely filed statement of points the party intends to appeal or such a statement combined with a motion for new trial); In re T.T.,
[12] The caseworker testified to her knowledge of James's two positive drug tests during the pendency of the termination proceedings and to her conversation with James following these tests, in which he admitted cocaine use.