In re M.E.C.
| Decision Date | 12 December 2001 |
| Docket Number | No. 10-00-297-CV.,10-00-297-CV. |
| Citation | 66 S.W.3d 449 |
| Parties | In the Interest of M.E.C., a Child. |
| Court | Texas Court of Appeals |
Cathren Page Koehlert, Texas Dept. of Protective & Regulatory Services, Austin, for appellee.
Lynnan L. Kendrick, Waco, Attorney Ad Litem.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
A jury recommended that Dionisio Castillo's parental rights be terminated with respect to his three-year-old daughter M.E.C. The court rendered judgment in accordance with the verdict. Castillo claims in seven issues that: (1) there is no evidence and factually insufficient evidence that he knowingly placed or knowingly allowed M.E.C. to remain in conditions or surroundings which endangered her physical or emotional well-being; (2) there is no evidence or factually insufficient evidence that he had notice of the court's temporary orders with which the jury found he had failed to comply; (3) the court improperly commented on the weight of the evidence when it admitted copies of these orders in evidence; (4) the court improperly commented on the weight of the evidence when it admitted in evidence a copy of the jury charge from the prior termination trial of M.E.C.'s mother; (5) the submission of Castillo's failure to comply with the temporary orders as an alternative basis for termination taints the verdict because "its proof per se requires the admission of the underlying temporary orders which constitutes an impermissible comment on the weight of the evidence"; and (6) the court exceeded its authority by imposing termination as a sanction for criminal contempt of its order (two issues).
M.E.C. was born to Castillo and Dollie Thurman in September 1998. During Dollie's pregnancy, they lived in the home of her mother Donna Thurman. Soon after M.E.C.'s birth, they moved out of Donna's home.1 They moved to Austin where they lived for several months in an apartment with Castillo's brother. Federal immigration authorities deported Castillo to Mexico in January 1999. Dollie returned to Waco. Castillo returned to Waco about one month later. He testified that he lived in a friend's apartment for about one month before he moved back into Donna's home with Dollie.
An investigator with the Child Protective Services Division of the Texas Department of Protective and Regulatory Services ("CPS") went to Donna's house on Tuesday, February 23, 1999 to investigate a referral regarding M.E.C.'s welfare. Dollie met him at the door and gave a false name. She told him that Dollie had recently moved from the home and that no children were there. She would not allow him to enter. At his supervisor's advice, he summoned police assistance. He found Castillo, Dollie, and M.E.C. in Donna's house. Castillo and Dollie denied that they were living there at the time.
The investigator described the home as follows:
The home had an awful odor of cat feces. The home was covered with animal feces on the tables, furniture, floors, and there was feces-soiled clothing piled on top of several open space heaters. There was old food scattered all over the house.
One of the police officers contacted the City of Waco Inspection Services Department and requested that an inspector come and assess the home. The inspector "green tagged" the home because he deemed it "unfit to live in ... due to the unsanitary living conditions." Castillo, Dollie and Donna spent the remainder of the week and the weekend cleaning the house. The inspector removed the green tag on the following Monday.
CPS removed M.E.C. from the home and instituted emergency proceedings under chapter 262 of the Family Code. CPS held a permanency planning team meeting on March 15, during which they met with Castillo and Dollie and developed a Family Service Plan. The service plan established a series of tasks which Castillo and Dollie were to accomplish for reunification of the family. For Castillo, these tasks included: paying monthly child support of $50; maintaining adequate employment to provide for M.E.C.'s basic needs; obtaining and maintaining a clean and safe home; participation in a "parenting capability test"; random urinalysis; drug and alcohol assessment; and a psychological evaluation.
CPS Supervisor Jesse Guardiola testified that he discussed these tasks with Castillo both in English and in Spanish. Castillo never received a written copy of this service plan. The written service plan was completed and signed by CPS officials on April 1. Dollie signed the plan on April 2. A handwritten notation indicates that Castillo was
During the course of the proceedings, CPS lost contact with Castillo. He did not appear at the first adversary hearing conducted one week after M.E.C.'s removal. He likewise failed to appear at the status hearing held almost two months after her removal. According to various orders issued by the court during the course of the litigation, Castillo's whereabouts were unknown. CPS filed a first amended petition in December 1999 seeking termination of Castillo's and Dollie's parental rights. Because Castillo's whereabouts were unknown, CPS obtained service on Castillo by publication. Dollie filed a status affidavit in May 2000 indicating that Castillo's last known address was "Mexico."
CPS had been prepared to take a default judgment against Castillo in a July 2000 trial.2 However, an attorney appointed to represent him located him shortly before trial. She spoke to him by telephone for the first time on the night before trial. The following morning Castillo appeared for court. His counsel informed the court that he does not speak fluent English. She asked that the court allow her to withdraw and appoint a Spanish-speaking attorney to represent him. She also requested a continuance for additional time to prepare for trial. The court granted both requests and elected to conduct a separate trial for each parent. CPS and Dollie proceeded to trial, and the jury returned a verdict on July 14 that her parental rights should be terminated. The court signed an interlocutory decree in accordance with the verdict on July 31.
CPS filed a second amended petition on July 17. CPS alleges in this pleading that termination of Castillo's parental rights is warranted because he:
• knowingly placed or knowingly allowed M.E.C. to remain in conditions or surroundings which endangered her physical or emotional well-being;
• engaged in conduct or knowingly placed her with persons who engaged in conduct which endangered her physical or emotional well-being;
• constructively abandoned her while she was in CPS custody; and
• failed to comply with the court's temporary orders which established the actions necessary for him to obtain her return.
See Tex. Fam.Code. Ann. § 161.001(1)(D), (E), (N), (O) (Vernon Supp.2002).
CPS and Castillo proceeded to trial on August 7. The jury found in CPS's favor on the first and last of these allegations.3 The jury refused to make affirmative findings on the other two grounds for termination. The jury also found that termination of Castillo's parental rights is in M.E.C.'s best interest. The court signed a termination decree in accordance with the verdict on August 18.
Castillo contends in his first issue that there is no evidence and factually insufficient evidence that he knowingly placed or knowingly allowed M.E.C. to remain in conditions or surroundings which endangered her physical or emotional well-being.
When we decide a "no evidence" point, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Id. (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)). "More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.' "Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). We apply this standard of review in termination cases, which require proof by clear and convincing evidence, even though this standard was developed in preponderance-of-the-evidence cases. See In re A.P., 42 S.W.3d 248, 256 (Tex.App.-Waco 2001, no pet.); Justice Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor L.Rev. 391, 413 (1996).
A factual sufficiency challenge requires us to consider and weigh all the evidence, not just the evidence which supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998); In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). Because a termination case invokes the clear-and-convincing standard, we will set aside the challenged finding only "if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence."4 A.P., 42 S.W.3d at 256 (). "This could occur if: `(1) the evidence is factually insufficient to support a finding by clear and convincing evidence; or (2) a finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably...
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