D.O. v. Texas Dept. of Human Services

• Decision Date: 17 March 1993
• Docket Number: No. 3-91-228-CV,3-91-228-CV
• Citation: 851 S.W.2d 351
• Parties: D.O., Appellant, v. TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee.
• Court: Texas Court of Appeals

Page 351

851 S.W.2d 351

D.O., Appellant, v. TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. 3-91-228-CV.

Court of Appeals of Texas Austin.

March 17, 1993.

Richard E. Criss, Jr., Austin, for appellant.

Ronald Earle, Dist. Atty., C. Bryan Case, Jr., Barrett Denum, Asst. Dist. Attys., Austin, for Texas Dept. of Human Services.

Cynthia Bryant, Children's Rights Clinic, University of Texas Law School, Austin, ad litem for the Children.

Before POWERS, ABOUSSIE and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

Appellant D.O. appeals from a decree of termination of parental rights rendered by the district court of Travis County. The district court terminated the parent-child relationship between D.O. and his daughter T.N.O. ¹ and appointed appellee Texas Department of Human Services ("TDHS") permanent managing conservator. We will affirm the decree of termination.

A court may terminate a parent-child relationship if it finds that (1) the parent has engaged in any of the specific conduct enumerated in the Family Code as grounds for termination; and (2) termination is in the child's best interest. Tex.Fam.Code Ann. § 15.02(1), (2) (West Supp.1993); Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Smith v. Sims, 801 S.W.2d 247, 251-52 (Tex.App.--Houston [14th Dist.] 1990, no writ). Here, the trial court found: (1) that D.O. knowingly placed T.N.O., or knowingly allowed her to remain, in conditions or surroundings that endangered her physical or emotional well-being, § 15.02(1)(D); (2) that he engaged in conduct, or knowingly placed T.N.O. with persons who engaged in conduct, that endangered her physical or emotional well-being, § 15.02(1)(E); (3) that a court had previously terminated his parent-child relationship with respect to another child, § 15.02(1)(M); and (4) that termination was in T.N.O.'s best interest, § 15.02(2).

In six points of error, D.O. contends that no evidence and, alternatively, factually insufficient evidence exists to support the trial court's first, second, and fourth findings. In a seventh point of error D.O. challenges the constitutionality of section 15.02(1)(M) of the Family Code that permits termination solely upon a finding that a parent's rights to another child have been terminated and that termination is in the best interest of the child the subject of this suit.

STANDARD OF REVIEW

TDHS had the burden to prove the elements necessary for termination by clear and convincing evidence. In re G.M., 596 S.W.2d 846, 847 (Tex.1980); Neal v. Texas Dept. of Human Servs., 814 S.W.2d 216, 222 (Tex.App.--San Antonio 1991, writ denied); see Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (function of standard of proof is to instruct the factfinder concerning the degree of confidence society thinks it should have in correctness of factual conclusions). The clear and convincing standard of proof requires "that measure or degree of proof which 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." In re G.M., 596 S.W.2d at 847.

When both no-evidence and factual-sufficiency challenges are raised, we must first examine the legal sufficiency of the evidence. Glover v. Texas Gen. Idem. Co., 619 S.W.2d 400, 401 (Tex.1981). In deciding a no-evidence point, we consider only the evidence and inferences tending to support the finding and disregard all evidence to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re S.H.A., 728 S.W.2d 73, 90 (Tex.App.--Dallas 1987, no writ).

In deciding whether the evidence is factually sufficient, this Court considers and weighs all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986). The clear and convincing standard of proof required to terminate parental rights does not alter the appropriate standard of appellate review. State v. Turner, 556 S.W.2d 563, 565 (Tex.1977); Meadows v. Green, 524 S.W.2d 509, 510 (Tex.1975) (evidence is reviewed by only two standards: factual and legal sufficiency); Browning-Ferris Indus., Inc. v. Zavaleta, 827 S.W.2d 336, 341 (Tex.App.--Corpus Christi 1991, writ denied); see Director of the Dallas County Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 732 (Tex.App.--Dallas 1992, no writ) (clear and convincing evidence standard is correct standard for jury evaluation and not standard for instructed verdict).

We recognize that many courts, including this one, have described an intermediate standard of appellate review in such cases. "[I]t 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, but whether the trier could reasonably conclude that the existence of the facts is highly probable." Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.--Dallas 1982, no writ); see also Williams v. Texas Dep't of Human Servs., 788 S.W.2d 922, 926 (Tex.App.--Houston [1st Dist.] 1990, no writ); In re L.R.M., 763 S.W.2d 64, 66-67 (Tex.App.--Fort Worth 1989, no writ); G.M. v. Texas Dep't of Human Resources, 717 S.W.2d 185, 187 (Tex.App.--Austin 1986, no writ); compare Doria v. Texas Dep't of Human Resources, 747 S.W.2d 953, 955 (Tex.App.--Corpus Christi 1988, no writ); Baxter v. Texas Dep't of Human Resources, 678 S.W.2d 265, 267 (Tex.App.--Austin 1984, no writ). In L.R.M., the court recognized an intermediate standard but proceeded to "determine whether the evidence at trial was factually sufficient to support a finding of clear and convincing evidence." L.R.M., 763 S.W.2d at 67. After reviewing these cases, we determine that this suggested intermediate standard of appellate review is incorrect. See Doria, 747 S.W.2d at 955; Baxter, 678 S.W.2d at 267. The standard for factually-sufficient review is as stated in In re King's Estate, Cain, and Pool.

BACKGROUND

D.O. and K.O. married in 1978; they divorced in April 1987. T.N.O. was born in November 1987; because the couple was unaware of K.O.'s pregnancy in April 1987, the divorce decree does not mention this child in utero and makes no provisions for her custody or support. Four other children were born of this marriage. In April 1986, a court terminated the couple's parental rights to three of these children; K.O.'s parents adopted a fourth child in 1987.

Following her divorce from D.O., K.O. married David Englehardt in June 1988; one child, A.O., was born of that marriage. (Although David Englehardt was A.O.'s biological father, she bore the same surname as her mother and half-sister, T.N.O.) The trial court terminated K.O. and David Englehardt's parental rights to A.O., and K.O.'s parental rights to T.N.O., but this appeal involves only D.O.'s challenge to the termination of his parental rights to T.N.O.

Following their divorce, K.O. and D.O. continued to live together off and on, even after K.O. married David Englehardt. There was evidence that D.O. at times provided housing and support for not only K.O. and T.N.O., but also for A.O. and David Englehardt.

Each of these three adults has a criminal record that bears on the matter before us. In 1985, K.O. was convicted of injury to a child for failing to protect one of her children from her then boyfriend, Mario Benevides, and for failing to procure medical treatment for the child after Benevides placed the child in scalding water. At the time, D.O. had entrusted the children's care to K.O. because he was in the penitentiary for theft by check; he had previously been convicted for criminal trespass and the unauthorized use of a motor vehicle. Following the incident of the scalding water, D.O. and K.O.'s parental rights to three of their children were terminated in April 1986. In 1990, K.O. was convicted of kidnapping one Robert Walker who was later murdered. She was sentenced to twenty years and was in the penitentiary during the time of the trial below.

When K.O. and David Englehardt married, he was on probation for a forgery conviction; his probation was revoked when he was convicted of the unauthorized use of a motor vehicle in July 1989. He served time in prison between July 1989 and March 1990. Soon after his release, he was convicted of an especially brutal rape of a seventy-year-old woman in May 1990 and was sentenced to ninety-nine years' confinement. Like K.O., he was in state prison at the time of the trial.

K.O.'s daughters, T.N.O. and A.O., were taken into custody by TDHS in January 1990 when K.O. was arrested for kidnapping; T.N.O. was two years old, A.O. was one. When TDHS took possession of T.N.O., she was dirty, had a rash, and required extensive dental care. While in a foster home, she acted aggressively toward A.O. and, at one point, the children were put in separate homes. The children remained in foster care through the date of the trial. Of the three adults, D.O. was the only one not incarcerated after TDHS picked up the children. He was entitled to supervised visits with both children for one hour every two weeks while they remained in foster care.

SURROUNDINGS AND CONDUCT THAT ENDANGERED T.N.O.

By his first two points of error, D.O. complains that there is no evidence or factually insufficient evidence that he knowingly placed T.N.O., or knowingly allowed her to remain, in conditions that endangered her physical or emotional well-being. § 15.02(1)(D). In his third and fourth points of error, D.O. raises the same challenge to the trial court's finding that he engaged in conduct, or knowingly placed T.N.O. with persons who engaged in conduct, that endangered...