In re W.E.C.

• Decision Date: 05 June 2003
• Docket Number: No. 2-02-085-CV.,2-02-085-CV.
• Citation: 110 S.W.3d 231
• Parties: In the Interest of W.E.C.
• Court: Texas Court of Appeals

110 S.W.3d 231

In the Interest of W.E.C.

No. 2-02-085-CV.

Court of Appeals of Texas, Fort Worth.

June 5, 2003.

COPYRIGHT MATERIAL OMITTED

Michael B. Curtis, Wichita Falls, for Appellant.

Lana S. Shadwick, Appellate Atty., Special Litigation Unit, and C. Ed Davis, TDPRS General Counsel, and Phoebe Knauer, Deputy General Counsel, and Cathy Morris, Chief Atty. for Field Operations, and Sarah R. Guidry, Supervising Atty. for Field Operations, Special Litigation, for Appellee.

PANEL B: HOLMAN, GARDNER, and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

A jury found that appellant C.E.'s parent-child relationship with her son, W.E.C., should be terminated, and the trial court entered judgment on the jury verdict, terminating appellant's parental rights. In six issues, appellant contends that the evidence is legally and factually insufficient to support any of the four grounds for termination pleaded by the Texas Department of Protective and Regulatory Services ("TDPRS") and is legally and factually insufficient to support the finding that termination is in W.E.C.'s best interest. She also contends that the trial court erred by admitting evidence that was privileged under rule 510 of the Texas Rules of Evidence. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant has three children, M.E., who was born in October 1990; A.E., born in December 1992; and W.E.C., who was born in February 1999. W.E.C. had a twin sister, but she died of SIDS in June 1999. Appellant is still married to the father of M.E. and A.E., although the couple separated in 1993; neither appellant nor the children have seen him since then. Appellant began a relationship with W.E.C.'s father, R.C., in 1997. Their relationship continued for about three-and-a-half years.

TDPRS first became involved with appellant and her children in February 1999 when her twins were born two months prematurely. Appellant reported to her doctors that she drank heavily during the first four months of her pregnancy, but said she quit when she learned she was pregnant. However, while the twins were hospitalized after birth, appellant became intoxicated, fell, lost consciousness, and had to be taken to the emergency room. A referral was made to TDPRS while the twins were hospitalized. Concerns existed that, because the twins had special medical needs and because appellant drank heavily, appellant might not be capable of taking care of them and their special needs. W.E.C. needed a monitor because he had apnea episodes where he would quit breathing. His sister had other problems, and both children needed measured feeding every three hours around the clock and required extensive follow-up with specialists in Fort Worth.¹

Appellant was "extremely cooperative" during TDPRS's investigation. TDPRS investigators concluded that appellant's two older boys were functioning relatively well in the home. Following its investigation, TDPRS implemented an in-home safety plan to help prepare appellant for the twins' discharge from the hospital and move home. TDPRS worked with appellant, instructing her not to smoke around the twins, to maintain a clean environment, and to keep smoke out of the home. They talked to her about her living conditions and the changes she needed to make in order to bring the twins home from the hospital. The plan required appellant and R.C. to submit to random urinalysis and to refrain from using alcohol or drugs while the children were in their care. Appellant submitted to a urinalysis ("UA"), and it came back negative. TDPRS determined that, with R.C.'s help and the help of family members, appellant could care for the twins. The twins were allowed to go home, to Wichita Falls, with appellant.

The record shows that W.E.C. experienced developmental delays, with borderline to mild cognitive and speech developmental delays, and a history of disruptive behavior, such as difficulty complying with demands and tantrums. W.E.C. functioned at approximately sixty to seventy percent of the developmental level that he should have demonstrated for his age. He was diagnosed with static encephalopathy, a brain-based problem that is nonprogressive, a probable attention-deficit hyperactivity disorder, and disruptive behavior disorder. W.E.C. was referred and admitted to the North Texas Rehabilitation Center's Infant/Child Development Program. He needed continued therapy, medication, support from specialists, and a structured day-to-day routine. Appellant, however, failed to take W.E.C. to all of his scheduled appointments with specialists. Appellant does not have a driver's license or a car and relies on others for transportation. Despite W.E.C.'s need for continued therapy, appellant eventually discontinued even North Texas Rehabilitation Center's in-home therapy services.

In April 2000, appellant contacted TDPRS to report that R.C. had over-medicated W.E.C. in an effort to make him sleep and had kicked A.E. in the ribs. TDPRS investigated and ruled out a disposition for physical abuse. The investigation nonetheless showed "extensive risk" to the children, causing TDPRS to open a case for the provision of in-home safety services. As part of TDPRS's family preservation plan, both appellant and R.C. were to abstain from drug or alcohol use. Appellant and R.C. tested positive for methamphetamine, cocaine, and amphetamine in a random drug screening conducted on July 17, 2000. All three children were removed from appellant's care.

Appellant claimed that R.C. abused drugs and alcohol, that he got her involved with drugs, and that she became addicted to methamphetamine. Appellant explained that she began shooting up methamphetamine, or speed, in June 1999 about once a month and said her use evolved into a regular, almost daily, habit after September 1999. She and R.C. also occasionally used marijuana, and both abused alcohol. Their relationship was fraught with turmoil, often involving violence.

Appellant's criminal record includes convictions for theft by check, public intoxication, driving while intoxicated, and driving while her license was suspended. She served jail time for each of these offenses. While she was in jail, her stepfather and others cared for her children. Even after TDPRS removed the children, appellant continued her relationship with R.C. She claimed at trial, however, that she last saw R.C. in August 2001, approximately six months before the final termination hearing.

Appellant also claimed at trial that she last used methamphetamine in August 2001. She admitted that she had a drinking problem and said she started drinking at around age sixteen. She said she last drank and became intoxicated in December 2001, the month before the final termination hearing.

Appellant attended three different treatment programs — one before TDPRS became involved — but she completed only one of those programs. After completing the program, appellant failed to continue the weekly outpatient requirements. Appellant maintained that she has attended narcotic and alcohol support group meetings on and off for three years, but claims that she sometimes neglected to provide TDPRS with verification of her attendance at these meetings as she was required to do under her service plans.

Appellant initially failed to cooperate with TDPRS concerning visits to her home. She often refused to answer the door when it appeared she was home, or called TDPRS after a missed appointment and provided some excuse. She later exhibited a greater willingness to cooperate with regard to home visits. Although random drug screenings were required by TDPRS under appellant's service plans, appellant failed to show up for twelve of the eighteen screenings that were requested. The last drug screening appellant failed to attend was in August 2001, five months before the final termination hearing. Out of the six drug screenings appellant did complete, three were positive for marijuana, cocaine, methamphetamine, and amphetamine.

Pursuant to her service plan, appellant did, however, maintain a clean home environment, complete parenting classes, and submit to a chemical evaluation. She also attended some counseling sessions, made all of her scheduled visits with the children, and attended all permanency planning meetings.

In September 2001, TDPRS returned M.E. and A.E. to appellant, but maintained managing conservatorship over the children. W.E.C., however, remained in foster care. Subsequently, TDPRS moved to terminate appellant's parental rights to W.E.C.² According to TDPRS, the decision to terminate appellant's parental rights to W.E.C. was based on the services provided to appellant, TDPRS's concerns about appellant's drug and alcohol abuse, and its belief that appellant was unable to meet W.E.C.'s special needs or to provide a safe environment for him.

Trial commenced on January 8, 2002 before a jury. After TDPRS rested its case, appellant moved for a directed verdict, which was denied by the trial court.

Following appellant's presentation of evidence, and the jury's determination that appellant's parental rights should be terminated, the trial court entered an order terminating appellant's parental rights to W.E.C. Appellant filed a motion for new trial and it was overruled by the trial court. 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, ...