D.L.N., In Interest of

• Decision Date: 23 December 1997
• Docket Number: No. 10-97-178-CV,10-97-178-CV
• Citation: 958 S.W.2d 934
• Parties: In the Interest of D.L.N., a Child.
• Court: Texas Court of Appeals

Page 934

958 S.W.2d 934

In the Interest of D.L.N., a Child.

No. 10-97-178-CV.

Court of Appeals of Texas Waco.

Dec. 23, 1997.

Keith C. Cameron, Naman, Howell, Smith & Lee, P.C., Waco, for appellant.

John W. Segrest, Crim. Dist. Atty., Laura M. Alaniz, Asst. Crim. Dist. Atty., Waco, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Following a jury trial, LaJune Bowden's parental rights to her daughter, D.L.N., were terminated by the trial court. See TEX.FAM.CODE ANN. § 161.001 (Vernon Supp.1998). On appeal Bowden claims the evidence is legally and factually insufficient to support an involuntary termination of her parent-child relationship with D.L.N.

I. Factual Background

D.L.N. is the youngest of Bowden's five children. Bowden's two sons live in Michigan with their paternal grandmother and her other two daughters live with her. After D.L.N. was born, Bowden moved into a home without running water or electricity. Bowden testified that in 1993 D.L.N. began living primarily with Rosie and Cindy Dotson because a worker from the Texas Department of Protective and Regulatory Services (TDPRS) told Bowden that the conditions in her home made it an inappropriate place for D.L.N. to live. D.L.N. lived with the Dotsons for at least a year and a half. During this time the Dotsons provided D.L.N.'s food, clothing, and other necessities, except for some diapers and medicine initially provided by Bowden. Cindy Dotson stated that Bowden's visits to see D.L.N. would sometimes be weeks or months apart, but the longest time she went without seeing D.L.N. was four months. When Bowden came to see D.L.N., she would take D.L.N. to her house for about two days, and then the Dotsons would bring D.L.N. back to their home.

In February 1995, Cindy Dotson and several other adults took a group of children to a park to play. However, after a fight began in the park, Cindy decided to take the children home, and D.L.N. was inadvertently left behind. Later, D.L.N. was found at an apartment complex and the police were called. Shortly after this incident D.L.N. was placed in foster care by TDPRS.

While D.L.N. was in foster care, TDPRS formulated a "Family Service Plan" detailing various tasks for Bowden to accomplish in order to regain custody of D.L.N. Workers from TDPRS testified at the trial that Bowden did not consistently attend the counseling sessions, parenting classes, or visitation schedule ¹ prescribed by TDPRS, and thus, TDPRS decided to seek a termination of Bowden's parental rights to D.L.N. so she could be adopted by another family.

A jury trial was conducted in December 1996 to determine if a termination should occur. At the trial TDPRS alleged two possible grounds for the termination of Bowden's parental rights: (1) voluntarily leaving the child alone or in the possession of another without providing adequate support for the child and remaining away for a period of at least six months or (2) engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. See TEX.FAM.CODE ANN. § 161.001(1)(C), (E) (Vernon Supp.1998). TDPRS also alleged that it would be in D.L.N.'s best interest to terminate Bowden's parental rights. See TEX.FAM.CODE ANN. § 161.001(2) (Vernon Supp.1998). In response to the single question in the charge asking if the parent-child relationship between Bowden and D.L.N. should be severed, the jurors unanimously answered in the affirmative, and the trial court entered a judgment terminating Bowden's parental rights.

II. Points of Error

Bowden has appealed the judgment of termination claiming that there is "no evidence" or factually-insufficient evidence to support the termination of her parental rights. On appeal, an involuntary termination of parental rights must be strictly scrutinized because termination proceedings involve the fundamental constitutional rights surrounding the parent-child relationship. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); Ybarra v. Texas Dep't of Human Services, 869 S.W.2d 574, 576 (Tex.App.--Corpus Christi 1993, no writ); Clay v. Texas Dep't of Human Resources, 748 S.W.2d 598, 600-01 (Tex.App.--Waco 1988, no writ). A termination of parental rights is an irrevocable act severing the parent-child relationship for all purposes, except for the right of inheritance. See TEX.FAM.CODE ANN. § 161.206(b) (Vernon 1996); Holick, 685 S.W.2d at 20. Because a termination involves rights of "constitutional dimension," the grounds for termination must be proved by clear and convincing evidence. See TEX.FAM.CODE ANN. § 161.001 (Vernon Supp.1998), § 161.206(a) (Vernon 1996); Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984); In re J.J., 911 S.W.2d 437, 439 (Tex.App.--Texarkana 1995, writ denied).

We begin by addressing Bowden's "no evidence" or legal sufficiency claim. A no evidence point is decided by the appellate court considering the evidence and inferences supporting the jury's findings to determine if more than a scintilla of evidence in the record supports the jury's answers to the questions in the charge. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996); Lucas v. Texas Dep't of Protective and Regulatory Services, 949 S.W.2d 500, 502 (Tex.App.--Waco 1997, pet. filed). A "no evidence" challenge fails "[i]f there is any evidence of probative force to support the finding." Leitch, 935 S.W.2d at 118. Furthermore, because multiple grounds for termination were alleged by TDPRS and the court submitted this issue using a broad form question simply asking the jury whether the parent-child relationship should be terminated, the jury's answer will be upheld if any of the grounds for termination which were pled by TDPRS support the jury's answer. See Edwards v. Texas Dep't of Protective and Regulatory Services, 946 S.W.2d 130, 135 (Tex.App.--El Paso 1997, no writ); see also Texas Dep't of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990).

Section 161.001(1)(C) of the Family Code allows an involuntary termination of parental rights by the court if it is proved that a parent has:

voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months.

TEX.FAM.CODE ANN. § 161.001(1)(C). Bowden contends that the evidence supporting this ground of termination fails because, while TDPRS showed D.L.N. had lived with the Dotsons for at least eighteen months, Cindy Dotson stated that Bowden came to visit every few weeks or months. Cindy Dotson further testified that the longest time Bowden ever stayed away without visiting was four months. In response to Bowden's argument, TDPRS has argued that the statute does not require a parent to remain away for six consecutive months, so long as a parent remains away for a total of six months without providing adequate support.

We must look at the plain and common meaning of "remained away for a period of at least six months" to determine if the law requires that these be six consecutive months of absence. See Memorial Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 4 (Tex.1996); Lanier v. Stem, 931 S.W.2d 1, 2-3 (Tex.App.--Waco 1996, orig. proceeding). The language used in this subsection indicates that a parent must remain away from a child for a minimum of six months, without providing adequate support, in order to have his or her parental rights terminated under this provision. See TEX.FAM.CODE ANN. § 161.001(1)(C). Thus, because a parent should not face a termination on this ground until the minimum time-period of six months has passed, we believe the legislature intended that the six month time-period consist of six consecutive months. See id. In addition to the plain language of the statute, other appellate courts have concluded that when a parent's rights are terminated for failing to support a child for one year under section 161.001(1)(F) the "year" referred to in the statute means twelve consecutive months. See TEX.FAM.CODE ANN. § 161.001(1)(F) (Vernon Supp.1998); In re Z.W.C., 856 S.W.2d 281, 283 (Tex.App.--Fort Worth 1993, no writ); In re A.D.E., 880 S.W.2d 241, 246 (Tex.App.--Corpus Christi 1994, no writ). Finally, our interpretation of section 161.001(1)(C) to require six consecutive months of absence is consistent with the Supreme Court's directive that involuntary termination statutes be strictly construed in favor of the parent. See Holick, 685 S.W.2d at 20. Because TDPRS failed to show Bowden remained away from D.L.N. for six consecutive months, we conclude the evidence is not legally sufficient to support an involuntary termination of Bowden's parental rights under section 161.001(1)(C). Consequently, we must decide if the alternative ground for termination pled by TDPRS will support the trial court's judgment.

Section 161.001(1)(E), (2) of the Family Code allows a severance of the parent-child relationship if the parent has:

(E) 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;

....

and

(2) that termination is in the best interest of the child.

TEX.FAM.CODE ANN. § 161.001(1)(E), (2). In seeking an involuntary termination, TDPRS must prove both that the parent engaged in the conduct listed in subsection E and that the termination is in the best interest of the child. A termination cannot be based only upon what the trial court determines would be in the best interest of the child. Texas Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); Clay, 748 S.W.2d at 601.

The Supreme Court in both In re M.C. and Boyd stated that the term "endanger" used in subsection E means that the child has been exposed to loss or injury or is jeopardized as a result of the parent's conduct. In re M.C., 917 S.W.2d 268, 269 (Tex.1996); Boyd, 727 S.W.2d at 533. The conduct engaged in by the parent need not have...