B.R., In Interest of

• Citation: 950 S.W.2d 113
• Decision Date: 08 May 1997
• Docket Number: No. 08-96-00230-CV,08-96-00230-CV
• Parties: In the Interest of B.R., a Child.
• Court: Texas Court of Appeals

Page 113

950 S.W.2d 113

In the Interest of B.R., a Child.

No. 08-96-00230-CV

Court of Appeals of Texas El Paso.

May 8, 1997.

J. Devin Alsup, Kerr & Ward, L.L.P., Midland, for Appellant.

James H. Eubank, Midland, for Appellee.

J. K. 'Rusty' Wall, Law Office of J. K. Rusty Wall, Midland, Attorney Ad Litem.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

In two points of error, Appellant, the father of B.R., complains of a decree terminating his parental rights and granting the petition for adoption filed by the child's maternal grandparents. First, he alleges that he was denied reasonable access to his court-appointed attorney ad litem. Second, he challenges the legal and factual sufficiency of the evidence to support the trial court's finding that he engaged in conduct that endangered the physical or emotional well-being of his son. We affirm.

FACTUAL SUMMARY

On March 19, 1992, Appellant was indicted for the shotgun slaying of his wife, Angela. The couple had one child who was almost eleven months old at the time of the murder. Angela was pregnant with a second child at the time of her death. On August 7, 1992, Angela's parents filed a petition to terminate Appellant's parental rights and to adopt their grandchild. On September 11, 1992, a jury convicted Appellant of murder and sentenced him to life imprisonment. This Court affirmed Appellant's conviction in an unpublished opinion on March 30, 1994; our mandate issued on October 18, 1995. Following a non-jury trial held on January 11, 1996, the trial court found that Appellant had engaged in conduct that endangered the physical or emotional well-being of the child and that termination was in the child's best interest. The court also found that adoption by the grandparents was in the best interest of the child. This appeal follows.

DENIAL OF REASONABLE ACCESS TO ATTORNEY AD LITEM

In Point of Error No. One, Appellant alleges that he was denied reasonable access to his court-appointed attorney ad litem in violation of Section 107.013 of the Texas Family Code. ¹ In early October of 1992 following Appellant's conviction, the trial court appointed an attorney ad litem to represent him in the termination proceeding. Appellant was then in custody in the Midland County Jail where he remained until January 24 or 25, 1994 when he was transferred to the Institutional Division of the Texas Department of Criminal Justice (TDCJID). Prior to the January 11, 1996 setting, this case had been set for trial on various dates in 1993 and 1994. The trial court issued a bench warrant for Appellant on January 5, 1996, and he was brought back to the Midland County Jail late on the evening of January 10, 1996. The following morning, he conferred in person with his attorney for approximately an hour and a half before trial. After the case was called for trial, Appellant made an oral motion for continuance on the ground that he had not had sufficient time to obtain the presence of witnesses or consult in person with his attorney because he was not brought in from TDCJID until the night before trial. Appellant testified that between January 1994 and January 1996, his only method of communicating with his attorney was by mail. Neither Appellant nor counsel ever complained prior to the January 11 setting that they did not have sufficient access to one another or that counsel had been unable to prepare for trial as a result. The trial court denied the motion for continuance.

Appellant does not challenge the trial court's denial of his oral motion for continuance. Instead, he argues that the court violated Section 107.013 of the Texas Family Code by denying him reasonable access to his attorney prior to trial. The pertinent portion of Section 107.013 provides:

(a) In a suit in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of each indigent parent of the child who responds in opposition to the termination.

TEX.FAM.CODE ANN. § 107.013(a)(Vernon 1996).

The predecessor to Section 107.013(a) has been interpreted as imposing a mandatory duty upon the trial court to appoint an attorney ad litem to represent an indigent parent in a termination suit. Odoms v. Batts, 791 S.W.2d 677, 678 (Tex.App.--San Antonio 1990, no writ)[discussing Section 11.10(d) ]; see Ybarra v. Texas Department of Human Services, 869 S.W.2d 574, 580 (Tex.App.--Corpus Christi 1993, no writ). Appellant argues that Section 107.013(a) should also be interpreted as requiring a trial court to afford the indigent parent with reasonable access to the attorney ad litem and to provide the attorney with an ample opportunity to confer with the client and prepare for trial. He cites no authority directly in support of his contention that Section 107.013(a) requires a trial court to, on its own motion, take affirmative steps to ensure that the indigent parent and counsel have reasonable access to one another. Regardless, we need not decide this question because the record does not substantiate Appellant's claim that he was denied reasonable access to counsel or that counsel did not have an adequate opportunity to confer with him to prepare for trial.

The attorney-client relationship between Appellant and the ad litem had existed for more than three years at the time of trial. While Appellant was in the Midland County Jail from October 1992 until January 1994, this case was set for trial on several occasions. There is no evidence that counsel, whose office is in Midland, was unable to consult with Appellant in person or prepare for trial during that time period. After Appellant's transfer to TDCJID in late January of 1994, counsel was able to communicate with Appellant by mail. Again, there is no evidence that counsel was unable to effectively communicate with his client during this time period. Point of Error No. One is overruled.

SUFFICIENCY OF THE EVIDENCE

Section 161.001 of the Texas Family Code sets forth the grounds upon which the court may involuntarily terminate a parent-child relationship. TEX.FAM.CODE ANN. § 161.001 (Vernon 1996). ² Pertinent to this appeal, Section 161.001(1)(E) allows termination if the parent has:

[E]ngaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.

TEX.FAM.CODE ANN. § 161.001(1)(E). In addition to establishing one or more of the grounds under Section 161.001(1), the petitioner must also establish that termination is in the best interest of the child. TEX.FAM.CODE ANN § 161.001(2). Both of these elements must be established by clear and convincing evidence. TEX.FAM.CODE ANN. § 161.001; see Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980); Smith v. Sims, 801 S.W.2d 247, 250 (Tex.App.--Houston [14th Dist.] 1990, no writ). "Clear and convincing evidence" means the measure or 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; see In the Interest of G.M., 596 S.W.2d at 847; State v. Addington, 588 S.W.2d 569, 570 (Tex.1979); Sims, 801 S.W.2d at 250. It is an intermediate standard of proof, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. Addington, 588 S.W.2d at 570; Sims, 801 S.W.2d at 250.

Appellant challenges the legal and factual sufficiency of the evidence to support the trial court's finding that he engaged in conduct that endangered the physical or emotional well-being of the minor child. ³ He does not challenge the finding that termination of his parental rights is in the child's best interest.

Standard of Review

Because this case involves an elevated standard of proof in the trial court, we must initially address whether we apply a heightened standard of review in this Court. Stated simply, the question is whether evidence sufficient to support a fact-finding by a preponderance of the evidence is equally sufficient to support a fact-finding by clear and convincing evidence. Because we believe the traditional factual sufficiency review is inapplicable to an enhanced burden of proof, we answer this question in the negative and conclude that a stricter scrutiny is required.

The Dallas Court of Appeals first held in 1982 that factual sufficiency review of a finding where the burden of proof at trial was clear and convincing evidence requires a more stringent standard of review than ordinary factual sufficiency review. Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.--Dallas 1982, no writ). The Neiswander Court relied on authority from other jurisdictions and the common sense notion that a higher burden of proof necessitated a stricter standard of review. It held that it is the duty of the appellate court in reviewing the evidence to determine, not whether the trier of fact could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of the fact is highly probable. Neiswander, 645 S.W.2d at 836. Other courts of appeals adopted this standard. See e.g., Ybarra, 869 S.W.2d at 580; Neal v. Texas Department of Human Services, 814 S.W.2d 216, 222 (Tex.App.--San Antonio 1991, writ denied); Williams v. Texas Department of Human Services, 788 S.W.2d 922, 926 (Tex.App.--Houston [1st Dist.] 1990, no writ); In the Interest of L.R.M. and J.J.M., 763 S.W.2d 64, 66 (Tex.App.--Fort Worth 1989, no writ); Wetzel v. Wetzel, 715 S.W.2d 387, 389 (Tex.App.--Dallas 1986, no writ); see also In the Matter of the Estate of Glover, 744 S.W.2d 197, 199 (Tex.App.--Amarillo 1987)(discussing the higher standard of review in dicta), writ denied per curiam, 744 S.W.2d 939 (Tex.1988). Still other opinions reference the clear...