In re N.S.G.

• Decision Date: 12 September 2007
• Docket Number: No. 06-06-00108-CV.,06-06-00108-CV.
• Citation: 235 S.W.3d 358
• Parties: In the Interest of N.S.G., A Minor Child.
• Court: Texas Court of Appeals

235 S.W.3d 358

In the Interest of N.S.G., A Minor Child.

No. 06-06-00108-CV.

Court of Appeals of Texas, Texarkana.

Submitted July 16, 2007.

Decided September 12, 2007.

John S. Delk, II, Texarkana, for appellant.

Brad Morin, Curry & Morin, PLLC, Marshall, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

While his wife, Isis, was pregnant with their daughter, N.S.G., William Green and Isis used illegal drugs together. During the twenty-two months after N.S.G.'s birth, William used drugs, physically abused Isis, brought stolen goods and unsavory characters home, absconded from Texas to Tennessee to avoid arrest, and ultimately was brought back and incarcerated in Texas for burglary. William's actions produced three principal results: (a) William's and Isis's ejection from the home of William's sister, Patricia Arnold, and Patricia's husband, Jerry Arnold; (b) N.S.G.'s residence with the Arnolds, but not with William or Isis, the vast majority of her young life; and (c) William's failure to support N.S.G.

William appeals from the termination of his parental rights to N.S.G.,¹ the termination action having been instituted by the Arnolds. William contends that the evidence is legally and factually insufficient to support the termination. We disagree and affirm the termination because we conclude that (1) sufficient evidence established at least one substantive ground under Section 161.001 of the Texas Family Code and (2) sufficient evidence established that termination was in the best interest of N.S.G.

Although the petition for termination listed a variety of grounds for termination,² only one statutory ground— along with a finding that termination is in the best interest of the child—is required to be adequately proven to support an order of termination. In re N.R., 101 S.W.3d 771, 774 (Tex.App.-Texarkana 2003, no pet.). The trial court found that William did four things:

(1) voluntarily left [N.S.G.] alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of [N.S.G.], and remained away for a period of at least three months;³ [ground (B)]

(2) voluntarily left [N.S.G.] alon[e] in the possession of another without providing adequate support of [N.S.G.] and remained away for a period of a[t] least six months;⁴ [ground (C)]

(3) knowing[ly] placed or knowing[ly] allowed [N.S.G.] to remain in conditions or surroundings that endanger the physical or emotional well-being of [N.S.G.];⁵ [ground (D)] and

(4) engaged in conduct or knowing[ly] placed [N.S.G.] with persons who engaged in conduct that endangers the physical or emotional well-being of [N.S.G.]⁶ [ground (E)].

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 J.F.C., 96 S.W.3d 256, 263 (Tex.2002). The "clear and convincing proof" standard is an intermediate one, situated between the "preponderance of the evidence" standard of ordinary civil proceedings and the "beyond a reasonable doubt" standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex.1980). 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. In re C.H., 89 S.W.3d 17, 25-26 (Tex.2002).

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 2002); 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 that we must assume that 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 contrary to the judgment that a reasonable finder of fact could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266. In conducting a legal sufficiency review in a parental rights termination case, however, we must consider all of the evidence, not just that which favors the verdict. In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005). If we determine that no reasonable fact-finder could form a firm belief or conviction that the grounds for termination were proven, then the evidence is legally insufficient, and we must generally render judgment for the parent. J.F.C., 96 S.W.3d at 266; see TEX.R.APP. P. 43.3.

When reviewing a factual sufficiency challenge to a parental rights termination, we consider the evidence the fact-finder could reasonably have found to be clear and convincing. See J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25-26. In applying this standard to a trial court's findings, we ask whether there was sufficient evidence presented to produce in the mind of a rational fact-finder a firm belief or conviction as to the truth of the allegations sought to be established. C.H., 89 S.W.3d at 25; N.R., 101 S.W.3d at 774. In reviewing termination findings for factual sufficiency, we must give due deference to the fact-findings at the trial level, as in C.H., and should not supplant the fact-finder's judgment with our own. C.H., 89 S.W.3d at 27; see Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). "If, in light of the entire record, 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 reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. In applying this standard, "[a]n appellate court's review must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." C.H., 89 S.W.3d at 26 (citing Santosky v. Kramer, 455 U.S. 745, 767-69, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). We must assume that the fact-finder resolved any disputed facts in favor of its finding if a reasonable fact-finder could have done so. J.F.C., 96 S.W.3d at 266. We must also disregard all evidence that a reasonable fact-finder could have disbelieved. Id. We must consider, however, undisputed evidence even if it is contrary to the finding. Id. That is, we must consider evidence favorable to termination if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

The evidence shows that Isis gave birth to N.S.G. in December 2004 in Odessa, Texas, where William and Isis had driven to visit friends, arriving just shortly before the birth. William testified that his wife had been using marihuana and cocaine for the first three months of her pregnancy, before they learned of her pregnancy. He also testified that he was using drugs with Isis and that the burglary which resulted in the issuance of the warrant for his arrest occurred while Isis was pregnant with N.S.G. When N.S.G. was born, tests revealed that Isis had marihuana in her blood but that N.S.G. did not.

William, Isis, and N.S.G. returned to Linden from Odessa two days after the birth and moved in with the Arnolds, the petitioners in this action for termination. On December 15, William signed an agreement to place N.S.G. with Patricia. He also agreed to undergo a drug assessment on January 6, 2005, and had agreed to stay in the Arnolds' home until the investigation was complete. Despite these agreements, William left the area and went to Tennessee, leaving N.S.G. with Patricia. Isis testified that, two days after N.S.G.'s birth, William committed a burglary and that, after N.S.G.'s birth, William was ejected from the Arnolds' household. The evidence shows that William voluntarily left N.S.G. with the Arnolds when he left Texas to evade the outstanding arrest warrants; there is no evidence that he expressed an intent to return (other than a statement at trial that he intended to return after he had saved sufficient money to hire a lawyer to contest his burglary charge).

N.S.G. (twenty-two months old at the time of trial) had lived in the Arnolds' household since she was five days old. Although there is some contradiction in the testimony whether William or Isis first ceased living at the Arnold home, it is clear that both William and Isis left the home within the first week of their arrival and that they left N.S.G. with the Arnolds when they left the home.

Isis testified that William was ordered out of the Arnold house because he had been using drugs while living there. Jerry's testimony added that William had also "roughed up" Isis, had brought stolen goods into the house, and had allowed some of William's unsavory friends into the house, all in violation of conditions which Jerry had placed on William's residency there.

Isis had attempted to take N.S.G. from the day care center operated by Patricia, but was prevented from doing so by representatives of the Child Protective Services agency of the Texas Department of Family and Protective Services (CPS) until after she had received a drug assessment and had participated in counseling. Until Isis complied with these requirements, her contact with N.S.G. was to be restricted to supervised visitation. Instead of complying, she and William drove to Tennessee. William and Isis freely admit that the reason they hurriedly left Texas and went to Tennessee was for the purpose of avoiding William's arrest and prosecution for the felony charge of burglary. William testified that they had left N.S.G. with the Arnolds because CPS would not allow Isis to take the baby away from the Arnolds' day care...