Edwards v. Texas Department of Protective and Regulatory Services

Decision Date08 May 1997
Docket NumberNo. 08-96-00333-CV,08-96-00333-CV
Citation946 S.W.2d 130
PartiesMatthew EDWARDS, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
CourtTexas Court of Appeals

Judy Sanders Garcia, El Paso, for appellant.

James K. Read, Jose R. Rodriguez, County Attorney, Edward M. Sosa, Assistant County Attorney, El Paso, for appellee.

Before BARAJAS, C.J., and LARSEN and CHEW, JJ.

OPINION

LARSEN, Justice.

This is an appeal from a judgment terminating the parental rights of the appellant, Matthew Edwards. We affirm.

PROCEDURAL HISTORY

On August 15, 1995, the Texas Department of Protective and Regulatory Services filed a petition to terminate the parent-child relationship between Jauan Edwards ("Jauan") and his mother and father, Michelle Marshall ("Marshall") and Matthew Edwards ("Edwards"). The Department sought to terminate Edwards' parental rights pursuant to Section 161.001(1)(B), (D) and (F) and Section 161.002(b) of the Family Code. Those portions of the Code provide The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

. . . . .

(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;

. . . . .

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

. . . . .

(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;....

TEX.FAM.CODE ANN. § 161.001(1)(B)(D) and (F)(Vernon 1996).

(b) The rights of an alleged biological father may be terminated if, after being served with citation, he does not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160 prior to the final hearing in the suit.

TEX.FAM.CODE ANN. § 161.002(b)(Vernon 1996). The case was tried to the court, and the trial judge found for the Department on each of the grounds it alleged against Edwards. The trial court further found that termination would be in the best interest of the child as required by TEX.FAM.CODE ANN. § 161.001(2)(Vernon 1996). Edwards appeals with four points of error. Although the trial court also terminated Marshall's parental rights, Marshall did not timely perfect an appeal.

FACTS

Jauan was born on July 24, 1994. He was approximately twenty months old at the time of trial. He had never lived with Marshall or Edwards. Cheryl Nimmo, the caseworker assigned to Jauan's case, testified that Jauan was born with cocaine in his system and suffered from mild withdrawal as an infant. Edwards admitted that he knew Marshall was using cocaine during her pregnancy. He did nothing to stop her because he was a drug addict also and he "just let it go by, you know." Hospital records indicated Marshall had used cocaine through the fifth month of pregnancy, stopped, then began again approximately four days before Jauan was born. She had used cocaine the day of the birth. Edwards admitted that he failed to protect his son by his failure to stop Marshall from using cocaine during her pregnancy.

Jauan had to be hospitalized for twenty-three days after his birth. Nimmo never saw Edwards or Marshall visit the child in the hospital. She left her business card taped on Jauan's incubator, but neither Edwards nor Marshall ever contacted her. When Jauan was released, no one came to the hospital to pick him up. He had to be released to a foster home. In an attempt to locate Marshall, Nimmo made a home visit to her last known address. Marshall's relatives told Nimmo they believed Marshall was living on the streets using drugs, but they did not know her exact whereabouts. Nimmo did not see Marshall until a review hearing approximately four months after Jauan was released from the hospital. Marshall refused to enter the drug treatment program the court ordered at the hearing. She threatened Nimmo with bodily harm when Nimmo went to her home to take her to the program. Nimmo had no further contact with Marshall until the pretrial hearing in this case almost six months later. Marshall had been arrested for possession of cocaine and was brought to the pretrial hearing from the county jail.

Similarly, Edwards never initiated contact with Nimmo after Jauan's birth. On August 4, 1994, Nimmo located Edwards in the county jail. Edwards was aware of the birth of his son, and he knew the child was hospitalized, but he had not attempted to contact Nimmo or the hospital. Nimmo nevertheless believed Edwards to be "extremely motivated" toward reunification with Jauan at that time. She discussed reunification plans with Edwards and instructed him to contact her when he was released. Despite his release on August 10, 1994, Edwards never contacted Nimmo. Nimmo, who was aware of Edwards' August 10 release, attempted to find Edwards through the parent locator service, letters to his last known address, inquiries to utility companies, and letters to his parents in Illinois. She inquired regularly with the county jail and Thomason Hospital. Nimmo finally located Edwards again when he returned to the county jail in November 1994 on cocaine possession and theft charges. Edwards had received the correspondence from Nimmo, but had not responded.

Edwards was found guilty of cocaine possession and placed in an Intermediate Sanction Facility as part of a six-year term of probation. Nimmo took Jauan to the ISF for court-ordered one-hour visits with Edwards every other week. This was Edwards' first contact with Jauan. Although Edwards could have contributed small amounts of money toward Jauan's support, he had not done so apart from purchasing a few clothes for the child and toys for Christmas. During Edwards' eight month stay at the ISF, he and Nimmo discussed reunification plans for Jauan. Nimmo stressed to Edwards that the Department would not return Jauan to him if Marshall were in the home environment. Edwards told Nimmo that he wanted to take Jauan to Illinois where he had a wife and other children. When Edwards was released from ISF, however, he moved into an apartment with Marshall. At the time of trial, Marshall was participating in a residential drug treatment program. Edwards testified that he intended to continue to live with Marshall when she was released, but promised that he would take Jauan and leave her if she failed to stay off drugs.

SUFFICIENCY OF THE EVIDENCE: EDWARDS' CONDUCT

In his first point of error, Edwards attacks the legal and factual sufficiency of the evidence to support the trial court's findings on each of the grounds the Department alleged. In his second point, Edwards argues that the form and manner of the allegations as set out in the Department's petition required the Department to prove all four of the grounds alleged before Edwards' parental rights could be terminated. We will address Edwards' second point first because it will affect our analysis on his first point.

The Department's Pleadings

Edwards mistakenly asserts that the Department alleged its four grounds for termination in the conjunctive, thus requiring the Department to prove all four grounds. The Department's second amended petition actually lists the four grounds without conjunctive or disjunctive connectors. We note that TEX.FAM.CODE ANN. § 161.001(1)(Vernon 1996) lists fourteen separate possible grounds for termination using the disjunctive phrase "or." Subsection (2) adds "and " "that termination is in the best interest of the child." TEX.FAM.CODE ANN. § 161.001(1)(2)(Vernon 1996)[emphasis added]. Thus, the statute allows for termination of parental rights upon a finding that the parent engaged in conduct described in any one of the fourteen sub-parts under TEX.FAM.CODE ANN. § 161.001(1)(Vernon 1996), plus a finding that termination is in the best interest of the child as required by TEX.FAM.CODE ANN. § 161.001(2)(Vernon 1996). See also Dupree v. Texas Dep't of Protective and Regulatory Servs., 907 S.W.2d 81, 86 (Tex.App.--Dallas 1995, no writ)(trial court may terminate parent-child relationship if the fact finder determines a parent has been found to have committed one or more of the acts described in the Family Code and that termination is in the best interest of the child). In the absence of a statutory requirement for more than one ground, and given that the pleading does not allege the grounds in the conjunctive, we are hard pressed to interpret the pleading to require the Department to prove all four, rather than any one, of the grounds alleged.

Even if the Department had pleaded its four grounds in the conjunctive, we would not find Edwards' argument persuasive. The Amarillo Court of Appeals recently addressed the issue in In the Matter of the Marriage of Hill, 893 S.W.2d 753 (Tex.App.--Amarillo 1995, writ denied). In Hill, the department alleged conjunctively that the parent endangered the physical or emotional well-being of the children and knowingly placed the children in conditions or surroundings which endangered the emotional or physical well-being of the children. Id. at 755. The trial court charged the jury in the disjunctive thereby allowing the jury to terminate parental rights upon finding that the parent engaged in only one of the charged grounds. Id. Finding no civil cases on point, the Amarillo Court likened procedural issues in civil parental termination cases to procedural issues in criminal cases because both involve questions of constitutional proportion. Id. at 755-56. The court noted that well-established criminal jurisprudence holds that when alternative methods of committing a crime are alleged in an indictment conjunctively, a trial court does not err in charging the...

To continue reading

Request your trial
87 cases
  • In re J.F.C.
    • United States
    • Texas Supreme Court
    • December 31, 2002
    ...v. Tex. Dep't of Protective & Regulatory Servs., 949 S.W.2d 500, 502 (Tex.App.-Waco 1997, writ denied); Edwards v. Tex. Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 137 (Tex.App.-E1 Paso 1997, no writ); Spurlock v. Tex. Dep't of Protective & Regulatory Servs., 904 S.W.2d 152, 15......
  • In Re: Jane Doe 2
    • United States
    • Texas Court of Appeals
    • March 7, 2000
    ...no pet.) (same); In re R.D., 955 S.W.2d 364, 368-69 (Tex. App.--San Antonio 1997, pet. denied) (same); Edwards v. Texas Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 138-39 (Tex. App.--El Paso 1997, no writ) (same); Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W......
  • In the Interest of K.R.
    • United States
    • Texas Court of Appeals
    • June 8, 2000
    ...of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing); Edwards v. Dept. of Protective Servs., 946 S.W.2d 130, 137 (Tex. App.-El Paso 1997, no writ) (holding that while the traditional standard of review remains the same when assessing......
  • D.L.N., In Interest of
    • United States
    • Texas Court of Appeals
    • December 23, 1997
    ...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 Se......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT