Dupree v. Texas Dept. of Protective and Regulatory Services

• Decision Date: 30 August 1995
• Docket Number: No. 05-94-00642-CV,05-94-00642-CV
• Citation: 907 S.W.2d 81
• Parties: Byron DUPREE and Bridgette Turner, Appellants, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
• Court: Texas Court of Appeals

Page 81

907 S.W.2d 81

Byron DUPREE and Bridgette Turner, Appellants, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.

No. 05-94-00642-CV.

Court of Appeals of Texas Dallas.

Aug. 30, 1995.

Tim Freemyer, Guardian Ad Litem, Dallas.

Noemi A. Collie, Dallas, for appellants.

April E. Smith, Assistant District Attorney, Dallas, Gregory L. Housewirth, Dallas, for appellee.

Before MORRIS, WHITTINGTON, and WRIGHT, JJ.

OPINION

WRIGHT, Justice.

Byron Dupree and Bridgette Turner appeal the trial court's judgment terminating their parental rights to their child. We affirm the trial court's judgment.

DUPREE AND TURNER'S CONTENTIONS

In his first and second points of error, Dupree asserts the evidence was legally and factually insufficient to support the jury's finding that "he knowingly placed the child in conditions or surroundings which endangered the physical and emotional well-being of the child, or knowingly allowed the child to remain in conditions or surroundings which endangered the physical and emotional well-being of the child." In his third and fourth points of error, Dupree asserts the evidence was legally and factually insufficient to support the jury's finding that he engaged in conduct which endangered the physical and emotional well-being of the child or knowingly placed the child with persons who engaged in conduct which endangered the physical and emotional well being of the child. In his fifth and sixth points of error, Dupree argues the evidence was legally and factually insufficient to support the jury's finding that termination of his parental rights was in the best interest of the child.

In her first point of error, Turner asserts the trial court erred in terminating Dupree's parental rights. Her argument under her first point of error parallels Dupree's points of error. In her second point of error, Turner asserts the evidence was legally and factually insufficient to support the jury's findings that (1) she engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical and emotional well-being of the child; (2) she knowingly placed or allowed the child to remain in conditions or surroundings that endangered the child's well-being; and (3) termination of her parental rights was in the best interest of the child.

BACKGROUND

On November 17, 1992, Turner gave birth to a child fathered by her boyfriend, Dupree. Turner admitted to hospital officials she used cocaine during her pregnancy, including the day she gave birth. Turner was incarcerated for violating the terms of her parole when this trial took place.

The fact that Dupree is the father is undisputed. Dupree executed a voluntary Statement of Paternity and sought to be named the child's sole managing conservator. The court entered an order establishing the parent-child relationship between Dupree and the child.

When the child was ready to be released from Baylor Hospital, Child Protective Services (CPS) immediately removed the child and placed the child in foster care. CPS filed a petition to terminate both appellants' parental rights. On March 7, 1993, after a jury trial, the trial judge terminated both appellants' parental rights.

STANDARD OF REVIEW

When reviewing a "no evidence" or a "legally insufficient" point of error, we consider only the evidence and inferences tending to support the dispositive findings and disregard all evidence and inferences to the contrary. Sylvia M. v. Dallas County Child Welfare Unit, 771 S.W.2d 198, 199 (Tex.App.--Dallas 1989, no writ). If there is more than a scintilla of evidence supporting the dispositive findings, we uphold the jury findings. Sylvia M., 771 S.W.2d at 200.

When deciding "factually insufficient" points of error, we consider all the evidence, including evidence contrary to the judgment. Sylvia M., 771 S.W.2d at 200. We set aside the jury's verdict only if the evidence is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Sylvia M., 771 S.W.2d at 200.

When terminating parental rights, each required finding must be based on clear and convincing evidence. TEX.FAM.CODE ANN. § 11.15(b) (Vernon 1986). Clear and convincing evidence is "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. § 11.15(c) (Vernon 1986).

PHYSICAL AND EMOTIONAL WELL-BEING OF THE CHILD

In his first, second, third and fourth points of error, Dupree claims there was no evidence, or in the alternative, insufficient evidence to support the jury's findings that Dupree (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered its physical or emotional well-being, or (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered its physical or emotional well-being. See TEX.FAM.CODE ANN. § 15.02(a)(1) (Vernon Supp.1995). Turner makes the same arguments in her first point of error. If the evidence is legally and factually sufficient under either subsection (D) or (E) of section 15.02(a)(1), we will overrule Dupree's first four points of error and Turner's first point of error to the extent she made the same arguments. See In re S.H.A., 728 S.W.2d 73, 82 (Tex.App.--Dallas 1987, writ ref'd n.r.e.). Because the issues, arguments, and relevant facts overlap substantially, we address Dupree's first four and Turner's first and second points of error together.

1. Applicable Law

Under section 15.02(a)(1)(E), the cause of the danger to the child must be the parents' conduct, as evidenced not only by the parents' acts but also by the parents' omissions or failures to act. See S.H.A., 728 S.W.2d at 85. The conduct to be examined includes what the parents did both before and after the child was born. Clark v. Clark, 705 S.W.2d 218, 219 (Tex.App.--Dallas 1985, writ dism'd). To be relevant, the conduct does not have to have been directed at the child, nor must actual harm result to the child from the conduct. In re C.D., 664 S.W.2d 851, 853 (Tex.App.--Fort Worth 1984, no writ). The use of drugs during pregnancy may be conduct which endangers the physical and emotional well-being of the child. In re Guillory, 618 S.W.2d 948, 951 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ).

If imprisonment of the parent is the result of or is coupled with a course of conduct which places a child in conditions that endanger its physical or emotional well-being, then a judgment terminating the parent-child relationship may be justified. Mayfield v. Smith, 608 S.W.2d 767, 769 (Tex.Civ.App.--Tyler 1980, no writ).

2. Application of Law to Facts--Turner

Considering all the evidence before us, including evidence contrary to the judgment, we conclude there is sufficient evidence to support the jury's findings. Dr. Whitfield, an attending neonatologist at the hospital where the child was born, had been called in because Turner had gone into premature labor. Dr. Whitfield testified cocaine was present in the systems of Turner and the child at the time the child was born. Debbie Young, a social worker at Baylor, testified Turner informed the hospital staff she had smoked crack cocaine thirty minutes before giving birth. Turner also told the staff she had used crack cocaine at least once per week during her pregnancy. Turner testified she used cocaine the day she gave birth and throughout her pregnancy, and that she had used drugs since she was seventeen years old. See Guillory, 618 S.W.2d at 951.

Turner and Dupree had previously had a stillborn child together. Turner testified she had been diagnosed with syphilis prior to that pregnancy, but failed to take the antibiotics given to her. Turner had been told by doctors that syphilis had been a contributing cause to the death of that child. Turner stated she did not complete the treatment for syphilis after the stillborn child was delivered. Turner received almost no prenatal care during this pregnancy. See Clark, 705 S.W.2d at 219.

The child was premature, needed treatment for exposure to syphilis, and remained hospitalized for ten days. Turner testified she and Dupree visited the child once.

Turner had been convicted on a drug-related criminal charge in 1989 and was placed on probation. Turner had previously been incarcerated in the penitentiary for violating the terms of her probation and became pregnant after she was paroled. Turner spent much of her pregnancy avoiding the authorities because she knew an arrest warrant had been issued for her failure to report to the parole officer. Three months after the child was born, Turner was arrested on this warrant, and was incarcerated at the time of trial. See Mayfield, 608 S.W.2d at 769.

Based on the above, we conclude there was more than a scintilla of evidence supporting the findings that Turner knowingly placed or knowingly allowed the child to remain in conditions or surroundings, or engaged in conduct or knowingly placed the child with persons who engaged in conduct, that endangered its physical or emotional well-being. See Sylvia M., 771 S.W.2d at 200. Viewing all of the evidence before us, including the evidence contrary to the judgment, we hold the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Sylvia M., 771 S.W.2d at 204. There was sufficient clear and convincing evidence to persuade the factfinder that Turner engaged in conduct prohibited by section 15.02 of the Texas Family Code. See Sylvia M., 771 S.W.2d at 204. We overrule Turner's second point of error to the extent she complained that the evidence was legally and factually insufficient to support the jury's findings that (1) she engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the well-being of the child and (2) knowingly placed or...