In re Interest of J.A.W., No. 06-09-00068-CV (Tex. App. 4/1/2010)
| Decision Date | 01 April 2010 |
| Docket Number | No. 06-09-00068-CV.,06-09-00068-CV. |
| Parties | IN THE INTEREST OF J.A.W. and S.P.W., Minor Children. |
| Court | Texas Court of Appeals |
On Appeal from the 307th Judicial District Court, Gregg County, Texas, Trial Court No. 2008-168-DR.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
This is a joint appeal from termination of parental rights to two children, J.A.W. (the older girl) and S.P.W. (the infant). The parental rights of the mother (Princess) of both children, the father (Brandon) of S.P.W., and the father (Kelly) of J.A.W. were terminated, and the relief sought in connection with conservatorship and visitation privileges to the maternal grandmother (Patricia) was denied. Brandon, Princess, and Patricia all filed appeals; Kelly did not. Separate briefs were filed by each party, albeit with substantial overlap among the issues raised. Having found the evidence sufficiently supports the judgment and no other reversible error, we affirm the judgment of the trial court.
Princess had a relationship with Kelly that resulted in the birth of J.A.W. Shortly thereafter, she lived with Brandon for a time, and S.P.W.'s birth resulted. While she and Brandon lived together, there is evidence that he repeatedly assaulted her, resulting in arrests, emergency room visits for Princess, and finally resulting in Brandon's current imprisonment. Brandon had also previously, during the lifetime of the child, been incarcerated in a state jail facility for six months after his revocation of community supervision on a felony theft conviction. Both children stayed at different times with Princess' mother, Patricia, and with Brandon's grandmother Nelderine.
Princess met Brandon in 2005 and lived with him in Nelderine's home. Brandon beat her on three specific occasions that resulted in hospital visits, the first time in April 2007, while she was pregnant, and the last time in January 2008, using a closet pole as a weapon. The last time, she was hospitalized. She nevertheless returned to live with Brandon. Princess' full scale IQ is fifty-four. The evidence shows that after S.P.W. was born, she stayed with Patricia or Nelderine and that Brandon had not provided anything for the child. After the assaults, Patricia had taken steps to get J.A.W. and her pregnant daughter out of Nelderine's home, and by December, both were living with Patricia. That did not last, however, as Princess took the child back to Nelderine's home shortly thereafter—where she could rejoin Brandon after his release from jail.
The Texas Department of Family and Protective Services (TDFPS) became involved following the December 2007 beating, during the short time that Princess was living with her mother. TDFPS was in the process of creating a "plan," and while doing so, discovered that Princess had moved back in with Nelderine—because her own mother was too strict and because she wanted to be with Brandon.1 After Princess left her mother's home and returned to Brandon, TDFPS directed that the children should be placed with Patricia. TDFPS arranged meetings, which Brandon walked out of and which Princess attended only briefly.
In the next stage of the proceedings, the children had been living with Patricia for several months, until mid—April 2007, when TDFPS received a report that Patricia was using drugs. Patricia admitted using marihuana, and (contrary to a court order directing that Princess could not have unsupervised contact with her children) had left the children with Princess while she was doing so. TDFPS removed the children from Patricia's home at that time and sent them to foster care. The evidence also shows that TDFPS found Patricia's home to be appropriate, clean, etc., and that drug tests of Patricia after the April 2007 incident were negative.
Brandon was incarcerated when S.P.W. was about five months old, and at the time of trial, he had completed twenty-two months of a six-year felony sentence for family violence against Princess. The likelihood of Brandon's release on parole was dubious; he had four prior convictions for assault and while incarcerated, he attacked a guard, which caused him to lose one year of good conduct time. There is no evidence that either child was ever injured by Brandon.
The standard of review in parental rights termination proceedings is clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2009); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2003). The evidence is clear and convincing when the proof is such that it produces in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established by the State. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002); In re A.W., No. 06-07-00118-CV, 2008 WL 360825 (Tex. App.-Texarkana Feb. 12, 2008, no pet.) (mem. op.).
In reviewing the legal sufficiency of the evidence, we view all the evidence in a light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. TEX. FAM. CODE ANN. § 101.007 (Vernon 2008); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Looking at the evidence in the light most favorable to the judgment means we must assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266.
In reviewing for factual sufficiency, we are to give due consideration to evidence the fact-finder could reasonably have found to be clear and convincing——whether it is such as to allow a fact-finder to reasonably form a firm belief or conviction about the truth of the State's allegations. If, on review of the entire record, we conclude that the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not have reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
We also acknowledge that sufficient proof of one statutory termination ground, together with the finding that termination is in the best interest of the child, is sufficient to support a termination order. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003).
We first address Princess' argument that there is no or insufficient evidence to support a finding that she knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endanger the physical or emotional well-being of the child.
The jury charge listed five different factors that are set out in the Texas Family Code as reasons to justify termination and instructed the jury that if it found that any one of them had occurred (and if in the best interest of the child), it could terminate her rights.2
Thus, the jury had multiple grounds on which it could have found termination appropriate, with no specificity as to which was actually utilized. Accordingly, the trial court entered an order that listed each reason set out in the charge as a reason for termination. Princess is required to address each possible reason for the verdict on appeal.
If a parent abuses or neglects the other parent or children, that conduct can be used to support a finding of endangerment even against a child who was not yet born at the time of the conduct. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009); In re W.J.H., 111 S.W.3d 707, 716 (Tex. App.-Fort Worth 2003, pet. denied). 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 Section 161.001(1)(E) is supportable. Id. at 534; In re C.E.K., 214 S.W.3d 492, 497 (Tex. App.-Dallas 2006, no pet.). In considering whether a relevant course of conduct has been established, a court may properly consider evidence of conduct that occurred both before and after a child's birth. In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.-Houston [14th Dist.] 2009, no pet.); In re S.T., 263 S.W.3d 394, 401-02 (Tex. App.-Waco 2008, pet. denied). In addition, a court may consider evidence establishing that a parent continued to engage in endangering conduct after the child's removal by TDFPS or after the child no longer was in the parent's care, thus showing the parent continued to engage in the course of conduct in question. See C.A.B., 289 S.W.3d at 883; Smith v. Sims, 801 S.W.2d 247, 249-50 (Tex. App.-Houston [14th Dist.] 1990, no writ).
The evidence set out above shows that Princess kept company with a man who beat her repeatedly and that she took her oldest child into harm's way. The evidence also shows that during several of the beatings, she was pregnant with the younger child and feared injury to the fetus as a result of at least one of the beatings—and yet later returned to live with Brandon. TDFPS was involved with the family by that point, and Princess did not go to one meeting they had arranged with her, Brandon, and grandparents because she had injuries to her face—and then hid in Brandon's apartment from the caseworker when she came by to check on her to see why she had not come to the meeting. There is evidence the older child was with her part of the time she was living with Brandon. There is no evidence that Brandon ever beat the children or harmed them physically in any other way. However, it is also clear that his actions in beating the mother would certainly injure the emotional well-being of the child. The fact that Princess chose for part of that...
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