In re K.G.M. & W.F.M.

• Decision Date: 27 July 2005
• Docket Number: No. 10-04-00162-CV.,10-04-00162-CV.
• Parties: In the Interest of K.G.M. and W.F.M., Children.
• Court: Texas Supreme Court

171 S.W.3d 502

In the Interest of K.G.M. and W.F.M., Children.

No. 10-04-00162-CV.

Court of Appeals of Texas, Waco.

July 27, 2005.

Robert Daniel Freisner, Waxahahie, Damara H. Watkins, Corsicana, for appellant/relator.

James E. Lagomarsino, Navarro County Dist. Atty., Corsicana, Lana Shadwick, Texas Dept. of Pro. & Reg. Ser., Houston, for appellee/respondent.

Kelly R. Myers, Corsicana, for other.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION¹

TOM GRAY, Chief Justice.

Appellant appeals the termination of the parent-child relationship between Appellant and two of her children, K.G.M. and W.F.M. In two issues, Appellant contends that the evidence that she knowingly placed or knowingly allowed the children to remain in conditions or surroundings, or engaged in conduct or knowingly placed the children with persons who engaged in conduct, that endangered their well-being, and that termination was in the children's best interest, was legally and factually insufficient. See TEX. FAM.CODE ANN. § 161.001 (Vernon 2002). Trial was before a jury, which made its findings by the concurrence of eleven members. Applying the standard of review for the legal sufficiency of the evidence established by the Texas Supreme Court in In the Interest of J.F.C., we have determined that the evidence is legally sufficient. See In re J.F.C., 96 S.W.3d 256 (Tex.2002). Likewise, applying the standard of review for the factual sufficiency of the evidence established by the Texas Supreme Court in In the Interest of C.H., we have determined that the evidence was factually sufficient. See In re C.H., 89 S.W.3d 17 (Tex.2002). We affirm.

I. K.G.M. In Appellant's first issue, she contends that the evidence was insufficient as to K.G.M. We will overrule Appellant's issue.

I. A. ENDANGERMENT. Appellant argues that there was no evidence that she endangered K.G.M. Appellee, the Department of Family and Protective Services, points primarily to the following evidence. Appellant had used heroin, cocaine, methamphetamines, and marijuana from the age of twelve until the time of trial. Appellant had not been able to complete the drug rehabilitation programs in which she had participated, including the one she had been in immediately before her felony community supervision was last revoked. Appellant used drugs to the degree that Appellant was not able to care for K.G.M. At the time of trial, Appellant was in prison for burglary. She had previously served two years for robbery.

I. A. 1. Legal Sufficiency. We have viewed this evidence in the light most favorable to the jury's finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered K.G.M. See TEX. FAM.CODE ANN. § 101.007 (Vernon 2002), § 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266.

I. A. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered K.G.M. See TEX. FAM.CODE ANN. §§ 101.007, 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25.

I. B. BEST INTEREST. Appellant argues that there was no evidence that termination was in K.G.M.'s best interest, except that Appellant concedes that her "drug and criminal history mitigate in favor of termination," and that her "incarceration has led to instability." Appellee points, too, primarily to the following evidence. Appellant had contacted K.G.M. only seven times in the seventeen months before trial. Appellant had no relatives who were willing or able to take K.G.M.K.G.M. was adoptable.

I. B. 1. Legal Sufficiency.

We have viewed this evidence in the light most favorable to the jury's finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and K.G.M. was in K.G.M.'s best interest. See TEX. FAM.CODE ANN. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266; Holley v. Adams, 544 S.W.2d 367, 371-73 (Tex.1976).

I. B. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review, we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and K.G.M. was in K.G.M.'s best interest. See TEX. FAM.CODE ANN. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25; Holley, 544 S.W.2d at 371-73.

Accordingly, we overrule Appellant's first issue.

II. W.F.M. In Appellant's second issue, she contends that the evidence was insufficient as to W.F.M. We will overrule Appellant's issue.

II. A. ENDANGERMENT. Appellant argues that there was no evidence that she endangered W.F.M. Appellee, the Department of Family and Protective Services, points primarily to the following evidence. Appellant had used heroin, cocaine, methamphetamines, and marijuana from the age of twelve until the time of trial. Appellant knew that she should not use drugs while pregnant, but could not help it. Appellant used cocaine and marijuana while pregnant with W.F.M. and one of her other children, not the subject of the suit, so that W.F.M. had cocaine and marijuana in his body at birth. W.F.M. had medical problems, including breathing problems, as a result of Appellant's drug use during pregnancy. Appellant continued to smoke, although smoking was harmful to W.F.M.'s health.

II. A. 1. Legal Sufficiency. We have viewed this evidence in the light most favorable to the jury's finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered W.F.M. See TEX. FAM.CODE ANN. §§ 101.007, 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266.

II. A. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered W.F.M. See TEX. FAM.CODE ANN. §§ 101.007, 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25.

II. B. BEST INTEREST. Appellant argues that there was no evidence that termination was in W.F.M.'s best interest, except that Appellant concedes that her drug use during pregnancy "may be considered conduct which endangers the well-being of the child," that her "drug and criminal history mitigate in favor of termination," and that her "incarceration has led to instability." Appellee points, too, primarily to the following evidence. Appellant had contacted W.F.M. only seven times in the seventeen months before trial. Appellant had no relatives who were willing or able to take W.F.M. W.F.M. was adoptable.

II. B. 1. Legal Sufficiency. We have viewed this evidence in the light most favorable to the jury's finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and W.F.M. was in W.F. M.'s best interest. See TEX. FAM.CODE ANN. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-73.

II. B. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review, we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and W.F.M. was in W.F. M.'s best interest. See TEX. FAM.CODE ANN. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25; Holley, 544 S.W.2d at 371-73.

Accordingly, we overrule Appellant's second issue.

Having overruled Appellant's issues, we affirm the judgment.

Justice VANCE concurs.

1. There is an apparent conflict in Texas Rule of Appellate Procedure 47.4. See Tex.R.App. P. 47.4. Because the author of the Concurring Opinion has opposed the designation of this memorandum opinion as a memorandum opinion, it must be designated as an opinion. "An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation." Id. The same rule, however, limits what opinions can be designated non-memorandum opinions:

An opinion must be designated a memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to...