In re L.E.S.

• Citation: 471 S.W.3d 915
• Decision Date: 18 August 2015
• Docket Number: No. 06–15–00015–CV,06–15–00015–CV
• Parties: In the Interest of L.E.S., a Child
• Court: Court of Appeals of Texas

471 S.W.3d 915

In the Interest of L.E.S., a Child

No. 06–15–00015–CV

Court of Appeals of Texas, Texarkana.

Date Submitted: August 11, 2015

Date Decided: August 18, 2015

Michael P. Kopech, Law Offices of Michael P. Kopech, for Mother of Child.

Charles Mac Cobb, Mac Cobb Law Office, Mount Pleasant, TX, for Father of Child.

Luisa P. Marrero, Office of General Counsel, Austin, TX, for appellee.

OPINION

Opinion by Justice Moseley

James and Julie appeal from the trial court's order terminating their parental rights to their daughter, L.E.S.¹Both parents contend the evidence is legally and factually insufficient to support the trial court's findings that they (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical and emotional well-being of the child, and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the parents to obtain the return of the child who had been in the temporary managing conservatorship of the Texas Department of Family and Protective Services (the Department) not less than nine months as a result of the child's removal from the parents under Chapter 262 of the Texas Family Code for the abuse or neglect of the child.SeeTex. Fam. Code Ann. § 161.001(1)(D), (E), (O)(West 2014). We affirm the trial court's judgment because we find (1) that sufficient evidence supports at least one finding of a statutory ground for termination of James' and for Julie's parental rights to L.E.S. and (2) that the trial court did not err in admitting a jailhouse recording of a conversation between James and Julie.

I. Sufficient Evidence Supports at Least One Finding of a Statutory Ground of Termination for Both James and Julie

A. Standard of Review

“The natural right existing between parents and their children is of constitutional dimensions.” Holick v. Smith,685 S.W.2d 18, 20 (Tex.1985). Indeed, parents have a fundamental right to make decisions concerning “the care, custody, and control of their children.” Troxel v. Granville,530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). “Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial.” In re A.B.,437 S.W.3d 498, 502 (Tex.2014). This Court is therefore required to “engage in an exacting review of the entire record to determine if the evidence is ... sufficient to support the termination of parental rights.” Id.at 500. “ ‘[I]nvoluntary termination statutes are strictly construed in favor of the parent.’ ” In re S.K.A.,236 S.W.3d 875, 900 (Tex.App.–Texarkana 2007, pet. denied)(quoting Holick,685 S.W.2d at 20).

In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001 (West 2014); In re E.N.C.,384 S.W.3d 796, 798 (Tex.2012). “Clear and convincing evidence” is that “degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2014); seeIn re J.O.A.,283 S.W.3d 336, 344 (Tex.2009). This standard of proof necessarily affects our review of the evidence.

In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven. In re J.P.B.,180 S.W.3d 570, 573 (Tex.2005)(per curiam); In re J.L.B.,349 S.W.3d 836, 846 (Tex.App.–Texarkana 2011, no pet.). We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted. J.P.B.,180 S.W.3d at 573.

In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing. In re H.R.M.,209 S.W.3d 105, 109 (Tex.2006)(per curiam). We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine “ ‘whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the ... allegations.’ ” Id.(quoting In re C.H.,89 S.W.3d 17, 25 (Tex.2002)); In re J.F.C.,96 S.W.3d 256, 264, 266 (Tex.2002). “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.”J.F.C.,96 S.W.3d at 266. “[I]n making this determination,” we must undertake “ ‘an exacting review of the entire record with a healthy regard for the constitutional interests at stake.’ ” A.B.,437 S.W.3d at 503(quoting C.H.,89 S.W.3d at 26).

Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, “ ‘the rights of natural parents are not absolute; protection of the child is paramount.’ ” In re A.V.,113 S.W.3d 355, 361 (Tex.2003)(quoting In re J.W.T.,872 S.W.2d 189, 195 (Tex.1994)); see In re M.S.,115 S.W.3d 534, 547 (Tex.2003). “A child's emotional and physical interests must not be sacrificed merely to preserve parental rights.” In re C.A.J.,459 S.W.3d 175, 179 (Tex.App.–Texarkana 2015, no pet.)(citing C.H.,89 S.W.3d at 26).

B. The Evidence

James and Julie's relationship, which began when James was twenty-six and Julie was sixteen, was riddled with domestic abuse and illicit drug use.²James physically abused Julie for a period of over four years, almost the entire time the couple had been together. The Department became involved after an incident of abuse on June 20, 2013. That afternoon, as Julie was preparing to go to work, she and James got into an argument which ended when James punched Julie in the face and “whipped” her. This took place while L.E.S. was in the home. James then took Julie to work, with L.E.S. in the car. Julie refused to go with James when her shift ended at midnight. Instead, she went to the Mount Pleasant Police Department for help. Julie was concerned about L.E.S. because she knew James had smoked methamphetamine in the past, and she was afraid he was high on methamphetamine while L.E.S. was in his care. Julie informed Officer Scott Wadley that she had been assaulted by her husband and that L.E.S. was in James' care after he had been smoking methamphetamine.

L.E.S., who was crying when officers arrived at the home to check on her welfare, was physically removed from James, and James was handcuffed for officer safety. The home was littered with garbage, was unclean, and was infested with cockroaches. L.E.S. was returned to Julie, and the Department was contacted due to the unsafe condition of the home and James' presence in the home. Julie was taken to the safety³shelter in Mount Pleasant.

David Zavala, a Department investigator, met with Julie at the Saf–T shelter, where Julie told him that she suffered from severe abuse at the hands of James for the last three years and that James was on methamphetamine. Julie indicated that methamphetamine use was an issue that James had been dealing with “for some time now.” At the conclusion of the meeting, Zavala informed Julie that she should remain in the shelter and that she should not return to James. Julie signed a safety plan to this effect, and she agreed that the plan was in her best interest as well as the best interest of L.E.S. Zavala advised Julie that he would contact her at the shelter the following week.

Zavala returned to the shelter to meet with Julie on June 25, at which time Julie was evidently abiding by the safety plan. Approximately two hours after this visit was concluded, however, Zavala was contacted by the shelter director, Janet Woods. Woods reported that Julie was attempting to leave to return to James. Woods believed that L.E.S. could be in harm's way if Julie was with James. After receiving this report, Zavala returned to the shelter and was informed by Woods that Julie had broken the shelter rules by sneaking a cell phone into her room. Julie had been in contact with James by text for the past five days and admitted talking to James about leaving the shelter with L.E.S. Because of this rule violation, Julie was asked to leave the shelter. The Department filed a petition for emergency removal, and L.E.S. was placed in foster care. The Department received a police escort outside of town for the placement, as James' truck was spotted outside the Department's office.

After the placement, Zavala met with Julie and James, who were planning on staying together. Julie, James, and L.E.S. were each scheduled for drug tests. L.E.S., who was one year old at the time, tested positive for methamphetamine. James tested positive for methamphetamine and marihuana, and Julie tested positive for marihuana.

Julie and James were both given service plans with which the couple complied until September 2013, when James tested positive a second time for marihuana. At this point, James basically stopped attempting to comply and moved to Dallas in October 2013. In December 2013, the trial court ordered James to have no contact with Julie or with L.E.S.⁴In January 2014, the trial court ordered a monitored return of L.E.S. to Julie, who was pregnant with her second child. Julie's second child, S.S., was born in March 2014.⁵

From the time of the monitored return until S.S. was born, Julie was doing all that was required of her under the...