In the Interest of J.W., a Child
No. 19-1069
Supreme Court of Texas
May 27,
On Petition for Review from the Court of Appeals for the Tenth District of Texas
JUSTICE BOYD, dissenting.
parent-child relationship. Of the twenty-one predicate grounds that section 161.001(b)(1) provides for termination, two explicitly protect children from harm they may face before they are born,3 and others at least implicitly do the same.4 What should not get lost in
Unfortunately, the Court then guts that protection in this case by ignoring evidence of such endangerment.6 As the Court acknowledges, the inquiry into whether a parent endangered his unborn child “is necessarily dependent on the facts and circumstances” in each case. Ante at __. And in this case, at least some evidence established that Father repeatedly minimized, denied, and enabled Mother‘s conspicuous and continuous drug use throughout her pregnancy, which undoubtedly made her womb a dangerous environment for the child. See In re J.W.S., No. 06-14-00018-CV, 2014 WL 3013352, at *6 (Tex. App.—Texarkana 2014, no pet.) (“Endangerment can . . . include knowledge that a child‘s mother abused drugs,” such as when father “was aware” of mother‘s drug use and “chose to look the other way instead of forcing [her] to seek help.” (citation omitted)). As the court of appeals noted, at least some evidence established that Father “was aware of [Mother‘s] problems with illegal substances” during her pregnancy and “was untruthful” with the Department about her addiction, “exhibit[ing] a pattern of . . . denial about the extent” of her addiction and “minimiz[ing] her substance abuse problems.” 627 S.W.3d 662, 670, 672 (Tex. App.—Waco 2019).
For example, some evidence established that Father permitted Mother‘s “friend,” who was recently released from prison, to stay in their home while Mother (who herself was, at that time, a recovering drug addict at best) was eight months pregnant
And as Father acknowledged, Mother left a drug-rehab facility around her fourth month of pregnancy, before she completed the program, because the facility “wouldn‘t let her take” promethazine with codeine, an opiate. Yet Father left Mother alone for much of the next three months—most of the child‘s second trimester—knowing that she rejected further treatment and did so for that reason.
To be sure, Father testified that he was away from Mother during that time due to necessary work-related travel, and generally claimed that he did all he could reasonably do to protect the child. And in determining whether legally sufficient evidence supports the jury‘s finding, we must consider that (and any other) contrary evidence along with the evidence that supports the jury‘s verdict. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005)). But the jury was free to disbelieve Father‘s testimony, and we must defer to the jury‘s credibility determinations so long as those determinations are not unreasonable. Id. (quoting Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)). Considering the evidence that, after the child was born, Father helped Mother fake the results of a drug test by providing her with his urine sample to use in lieu of her own, the jury could have reasonably found Father lacked credibility and doubted his entire testimony. Id. at 574 (“It was within the jury‘s province to judge [father]‘s demeanor and to disbelieve his testimony . . . .“). We might not have doubted his testimony had we been on the jury, but that does not establish that no reasonable juror could have done so.
Sadly, the Court completely nullifies the Family Code‘s protection for unborn children by substituting its own view for that of the jury. While considering all the evidence, we must review it not to decide whether we are convinced that Father placed his child in dangerous conditions or surroundings under subsection (D) or exposed him to dangerous conduct under subsection (E), but simply to “determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). And to make that determination, we must review the evidence “in the light most favorable” to the jury‘s findings and assume the jury resolved any disputed facts in favor of its finding if a reasonable juror could have done so. Id. In the end, we must uphold the jury‘s finding unless we conclude that no reasonable juror could have formed a firm belief or conviction that Father subjected his child to dangerous conditions or conduct. Id. On this record, and because subsections (D) and (E) protect unborn children as well as children after their birth, I cannot reach that conclusion.
The Legislature did not choose to enumerate what obligations fathers owe to prevent endangerment of their unborn children, and we cannot speak into that silence to invent such a list. The Court offers examples of how a father might “actively participate[]” in endangering his unborn child, ante at __, but fails to recognize that pre-birth endangerment need not be active at all. Subsections (D) and
I join the Court‘s refusal to “attribute[] any and all known danger” an unborn child faces to the father, ante at __, but I cannot join the Court in second-guessing the jury‘s findings. Regardless of what we might have concluded, a reasonable juror could have concluded that Father‘s actions and inaction were sufficient to establish that he knowingly placed or allowed his unborn child to remain in dangerous conditions or surroundings and exposed him to dangerous conduct.
The Court recognizes the dangerous conditions and conduct the child faced before he was born, and even acknowledges that the jury “may have reasonably concluded that Father could have better handled the difficult situation.” Ante at __. Yet the Court rejects the jury‘s finding that termination was
Jeffrey S. Boyd
Justice
OPINION DELIVERED: May 27, 2022