In re R.W.

• Decision Date: 05 February 2004
• Docket Number: No. 2-03-188-CV.,2-03-188-CV.
• Citation: 129 S.W.3d 732
• Parties: In the Interest of R.W.
• Court: Texas Court of Appeals

129 S.W.3d 732

In the Interest of R.W.

No. 2-03-188-CV.

Court of Appeals of Texas, Fort Worth.

February 5, 2004.

Marc F. Gault, Fort Worth, for Appellant.

Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A. and Chief of the Appellate Division, Sharon A. Johnson, Cindy M. Williams, and Melissa Paschall, Asst. Crim. D.A.'s, Fort Worth, for Appellee.

Panel A: CAYCE, C.J., LIVINGSTON and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. Introduction

This is an appeal from a judgment rendered on a jury verdict terminating the parent-child relationship between Appellant B.B.¹ and his daughter, R.W. In three points, B.B. contends that the evidence is legally and factually insufficient to support any of the statutory grounds for termination pleaded by the Texas Department of Protective and Regulatory Services ("TDPRS"). He also contends that the trial court erred by denying his no-evidence motion for summary judgment because TDPRS failed to produce any evidence to support termination of B.B.'s parental rights based on section 161.001(1)(E) of the Texas Family Code. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In July 2001, B.B. began a four-month relationship with R.W.'s mother, Rhonda W. Approximately six weeks into the relationship, Rhonda discovered that she was pregnant. However, according to both Rhonda and B.B.'s testimony at trial, neither party believed that B.B. was R.W.'s father because a doctor had miscalculated Rhonda's conception date. Therefore, both parties presumed that R.W.'s father was Rhonda's prior boyfriend, Robert W. Nevertheless, during the remainder of the couple's relationship, B.B. provided food and care for Rhonda and demonstrated an intent to treat R.W. as his biological child. In November 2001, Rhonda ended her relationship with B.B. and resumed her relationship with Robert. According to Rhonda's testimony at trial, although B.B. tried to remain supportive of her and R.W. after the break-up, she continually pushed B.B. out of her life by constantly reiterating that R.W. was not his child. Thereafter, pursuant to Rhonda's request, B.B. ceased all contact with her.

R.W. was born on April 28, 2002. Due to Rhonda's past history with TDPRS, R.W. was removed from Rhonda's care almost immediately after birth and was placed in foster care. On April 30, 2002, TPDRS filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in a Suit Affecting the Parent-Child Relationship, alleging Rhonda as R.W.'s mother and Robert as R.W.'s father. However, paternity tests later revealed that B.B. was the actual biological father of R.W. As a result, on June 26, 2002, TDPRS filed a first amended petition to terminate the parent-child relationship between B.B.² and R.W., alleging that termination was sought based on sections 161.001(1)(D), (E) and (N) of the Texas Family Code and the best interest of R.W.

On January 8, 2003, B.B. filed a Statement of Paternity, acknowledging himself as the biological father of R.W. Thereafter, on February 6, 2003, B.B. filed a no-evidence motion for summary judgment, alleging that TDPRS had failed to produce any evidence to support termination of B.B.'s parental rights based on the grounds provided. Although TDPRS never specifically responded to B.B.'s motion, TDPRS subsequently amended its petition by removing section 161.001(1)(F) as an alleged ground for termination of B.B.'s parental rights and by adding section 161.001(1)(H). After a hearing, on March 24, 2003, the trial court denied B.B.'s no-evidence motion for summary judgment.

On April 23, 2003, trial commenced before a jury. After hearing testimony from both sides, the jury found that B.B.'s parental rights should be terminated because B.B. had violated sections 161.001(1)(E) and (H) of the Texas Family Code and termination was in the best interest of R.W. Accordingly, on May 1, 2003, the trial court entered an order terminating B.B.'s parental rights to R.W. This appeal followed.

III. BURDEN OF PROOF IN TERMINATION PROCEEDINGS

A parent's rights to "the companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); accord Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The United States Supreme Court, in discussing the constitutional stature of parental rights, states, "[T]he interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). In a termination case, the State seeks to end parental rights permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit. Tex. Fam.Code Ann. § 161.206(b) (Vernon Supp.2004); Holick, 685 S.W.2d at 20. Nonetheless, while parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.2002). Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. Id.

In proceedings to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, TDPRS must establish one or more of the acts or omissions enumerated under subsection (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.App.-Waco 2002, pet. denied). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

Because of the elevated status of parental rights, the quantum of proof required in a termination proceeding is elevated from the preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 746, 102 S.Ct. at 1391; see also Tex. Fam.Code Ann. § 161.001.

Clear and convincing evidence is "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; In re J.F.C., 96 S.W.3d 256, 264 (Tex.2002); C.H., 89 S.W.3d at 25. This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex.1979); In re D.T., 34 S.W.3d 625, 630 (Tex.App.-Fort Worth 2001, pet. denied) (op. on reh'g). While the proof must be more than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570. Termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. Holick, 685 S.W.2d at 20-21; In re A.V., 849 S.W.2d 393, 400 (Tex.App.-Fort Worth 1993, no writ).

IV. SUFFICIENCY OF THE EVIDENCE

In his first two points, B.B. complains that the evidence is legally and factually insufficient to support the jury's findings that he: (1) engaged in conduct or knowingly placed R.W. with persons who engaged in conduct that endangered her physical or emotional well-being and (2) voluntarily, and with knowledge of the pregnancy, abandoned Rhonda beginning at a time during her pregnancy with R.W. and continuing through the birth, failed to provide adequate support or medical care for Rhonda during the period of abandonment before the birth of R.W., and remained apart from R.W. or failed to support R.W. since the birth. See Tex. Fam. Code Ann. § 161.001(1)(E), (H).

A. Standard of Review

The Texas Supreme Court recently clarified the appellate standards of review to be applied to legal and factual sufficiency of the evidence challenges in light of the clear and convincing evidence burden of proof in termination proceedings. J.F.C., 96 S.W.3d at 264-68 (discussing legal sufficiency review); C.H., 89 S.W.3d at 25 (discussing factual sufficiency review). Because termination findings must be based upon clear and convincing evidence, not simply a preponderance of the evidence, the supreme court has held that the traditional legal and factual standards of review are inadequate. J.F.C., 96 S.W.3d at 265; C.H., 89 S.W.3d at 25. Instead, both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a trier of fact could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25.

Accordingly, in reviewing the evidence for legal sufficiency in parental termination cases, we "look at all the evidence in the 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." J.F.C., 96 S.W.3d at 266. In conducting our review, we must disregard all evidence that a reasonable trier of fact could have disbelieved; however, we must consider undisputed evidence even if it does not support the finding. Id. If, after conducting our review, we determine that no reasonable trier of fact could have formed a firm belief or conviction that its finding was true, then we must conclude that the evidence is legally sufficient. Id.

In determining a factual sufficiency point, we must give due consideration to evidence that the trier of fact could reasonably have found to be clear and convincing and then determine whether, based on the entire record, a fact finder...