In re C.E.K.

• Decision Date: 14 November 2006
• Docket Number: No. 05-05-00683-CV.,05-05-00683-CV.
• Parties: In the Interest of C.E.K. and C.D.K., Minor Children.
• Court: Texas Court of Appeals

214 S.W.3d 492

In the Interest of C.E.K. and C.D.K., Minor Children.

No. 05-05-00683-CV.

Court of Appeals of Texas, Dallas.

November 14, 2006.

Rehearing Overruled February 28, 2007.

Timothy W. Avery, McKinney, for Appellant.

Angela Ivory, Alyson Marie Dietrich, John A. Stride, Asst. Dist. Attys., McKinney, for Appellee.

Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.

OPINION

Opinion by Justice BRIDGES.

Candace Keith (Mother) appeals the trial court's judgment terminating her parental rights to her two sons, C.E.K. and C.D.K. In eight issues, she contends the evidence is legally and factually insufficient to support a finding that (1) Mother knowingly placed or allowed the children to remain in conditions that endangered them, (2) she engaged in conduct or knowingly placed the children with a person who engaged in conduct that endangered them, or (3) termination of her parental rights was in the children's best interest; the trial court erred in admitting certain testimony; and it was error to terminate Mother's parental rights, as the trial court had discretion to preserve her rights and still safeguard the best interest of the children. For the reasons set forth below, we reverse the decree of termination and dismiss the suit affecting the parent-child relationship.

Following a report of domestic violence in November 2003, Collin County Child Protective Services (CPS) removed C.E.K. and C.D.K. from the home of Mother and Loai Sarabi (Father). Mother is the biological mother of both boys; Father is the biological father of the younger child. Initially, CPS sought to terminate the parental rights of both Mother and Father¹ but ultimately sought to terminate only Mother's rights. In the termination petition, CPS alleged that Mother (1) knowingly placed or allowed her sons to remain in conditions or surroundings that endangered their physical or emotional well-being and (2) engaged in conduct or knowingly placed them with persons who have engaged in conduct that endangered their physical or emotional well-being. TEX. FAM.CODE ANN. § 161.001(1)(D), (E) (Vernon Supp.2006). CPS also alleged that the termination of Mother's rights was in the children's best interest. Id. § 161.001(2). Six hearings concerning permanent placement of the children were held over nearly eighteen months. CPS eventually sought a permanent placement of both boys with Father. After a bench trial, the trial court ordered Mother's parental rights to both boys terminated and named Father the sole managing conservator of both boys, placing the older child with Father as a kinship placement. Mother brought this appeal.

In her first through fourth issues, Mother contends the evidence is legally and factually insufficient to support termination under the statutory conditions concerning endangerment. The trial court terminated Mother's parental rights under both section 161.001(1)(D) and (E) of the family code. Proof of either ground is sufficient to support termination. In re N.R., 101 S.W.3d 771, 775 (Tex.App.-Texarkana 2003, no pet.).

In a termination case, the State seeks not merely to limit parental rights, but to end them finally and irrevocably. TEX. FAM.CODE ANN. § 161.206(b) (Vernon Supp.2006); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Parents' rights to "the companionship, care, custody and management" of their children are constitutional interests "far more precious than any property rights." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Quoting the United States Supreme Court, the Texas Supreme Court has reiterated the fundamental constitutional rights and values underlying the protection of parental rights:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," "basic civil rights of man," and "[r]ights far more precious . . . than property rights." "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.

In re G.M., 596 S.W.2d 846 (Tex.1980) (quoting Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)) (citations in original omitted).

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by "clear and convincing evidence." TEX. FAM.CODE ANN. § 161.001 (Vernon Supp.2006); In re G.M., 596 S.W.2d at 847 (citing Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). "`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 (Vernon 2002). Actions breaking the link between a parent and child "can never be justified without the most solid and substantial reasons." State v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900), cited in Juan A.___ v. Dallas County Child Welfare, 726 S.W.2d 241, 244 (Tex.App.-Dallas 1987, no writ). In a termination suit, acts done in the distant past, without showing a present or future danger to a child, cannot be sufficient to terminate parental rights. Wetzel v. Wetzel, 715 S.W.2d 387, 391 (Tex.App.-Dallas 1986, no writ) (citing Hendricks v. Curry, 401 S.W.2d 796, 800 (Tex.1966)).

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction about the truth of the matter on which CPS bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002). We assume that the factfinder resolved any disputed facts in favor of its finding, if a reasonable factfinder could so do, and disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. at 266. But because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. See id. ("Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence").

When reviewing the factual sufficiency of the evidence to support a termination finding, we must give "due consideration" to any evidence the factfinder could reasonably have found to be clear and convincing. Id. at 266 (citing In re C.H., 89 S.W.3d 17, 25 (Tex.2002)). We must consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id. The evidence is not factually sufficient if, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of its finding is so significant that a factfinder could not have reasonably formed a firm conviction or belief. Id.

To terminate parental rights under section 161.001(1)(E), the evidence must show the person "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." TEX. FAM.CODE ANN. § 161.001(1)(E) (Vernon Supp.2006). This section refers only to the parent's conduct, as evidenced not only by the parent's acts, but also by the parent's omissions or failures to act. In re S.H.A., 728 S.W.2d 73, 85 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). "Endanger" means to "expose to loss or injury; to jeopardize." In re M.C., 917 S.W.2d 268, 269 (Tex.1996). Although "endanger" means more than a threat of physical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffer an injury. Id.

The relevant time frame to determine endangerment is before the children were removed. Ybarra v. Tex. Dep't of Human Servs., 869 S.W.2d 574, 577 (Tex.App.-Corpus Christi 1993, no pet.). It is not necessary that the offending conduct be directed at the child or that the child actually suffers injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). If the evidence "shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding under [161.001(1)(E)] is supportable." Id. at 534. Domestic violence, want of self-control and propensity for violence may be considered as evidence of endangerment. In re C.J.F. 134 S.W.3d 343, 351 (Tex. App.-Amarillo 2003, no pet.). If a parent abuses or neglects the other parent or children, that conduct can be used to support a finding of endangerment. Id.

The record shows that, on November 23, 2002 the police responded to a domestic disturbance call with "possible injury to a child." At the scene, Mother accused Father of choking her and of having kicked their three-month-old child. Father accused Mother of threatening him with a knife and said she had tossed him their child. The officer saw bright red marks on both boys' bodies. The apartment appeared unsanitary, but Father and Mother stated they were in the process of moving to explain the conditions in the apartment. Due to the allegations and evidence, he placed both parents under arrest. Father was arrested and charged with injury to a child. Mother was arrested for aggravated assault.

The children were taken to the emergency room, and an examination revealed the three-month-old had a linear skull fracture on the right side of his head but did not require hospitalization. The doctor estimated the injury was no more than two weeks old. A CPS...