In the Interest of D.T.

• Decision Date: 16 November 2000
• Citation: 34 S.W.3d 625
• Parties: (Tex.App.-Fort Worth 2000) IN THE INTEREST OF D.T., A CHILD NO. 2-99-101-CV
• Court: Texas Court of Appeals

Page 625

34 S.W.3d 625 (Tex.App.-Fort Worth 2000)

IN THE INTEREST OF D.T., A CHILD

NO. 2-99-101-CV

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

November 16, 2000

Rehearing Overruled January 25, 2001.

FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted] DAY and GARDNER, JJ.; JOHN HILL, J. (Retired, Sitting by Assignment).

OPINION ON REHEARING

ANNE GARDNER, JUSTICE

The State, on behalf of Texas Department of Protective and Regulatory Services (TDPRS), has filed a combined motion for rehearing and motion for rehearing en banc asserting complaints regarding our original decision. We withdraw our opinion and judgment issued June 8, 2000, and substitute the following in their place. We overrule the motion for rehearing.

Introduction

Appellant L.J.T., a twenty-eight year old mother,¹ appeals from the trial court's judgment terminating her parental rights to her son, D.T. She raises two points, contending there is legally or factually insufficient evidence to support the judgment of termination. We reverse and render in part and reverse and remand in part.

Background

Appellant became pregnant with D.T. in 1996, while living in Montana with D.T.'s father, D.B.² She left Montana on November 12, 1996, because D.B. had struck her with a bicycle rack the night before and because she wanted to avoid serving a jail term for a bad check charge. She moved to Oklahoma and had no further contact with D.B.

Appellant lived in Oklahoma from November 1996 until September 1997. D.T. was born in Oklahoma City on August 12, 1997. Subsequently, Appellant moved to Texas, got a job, and arranged for a babysitter to care for D.T. On February 10, 1998, Appellant was arrested by the Hurst Police Department on warrants for bad checks written in Texas and Montana. After she was arrested, she made arrangements for the babysitter to continue caring for D.T. for several more days. D.T. was then six months old.

Because she had no family locally, Appellant requested that TDPRS contact the child's paternal grandparents for possible placement.³ D.T. was placed in emergency foster care on February 12, 1998.

Jennifer Cook of TDPRS was assigned the case on February 12, 1998. She went to the Hurst jail and met with Appellant for approximately thirty to forty-five minutes. Cook notified Appellant of the emergency placement of D.T. and told her about proceedings being initiated by TDPRS to terminate the parent-child relationship between Appellant and D.T.

Cook saw D.T. on the date she was assigned, and the child appeared to be healthy and well-nourished. At that time, she had no reason to believe that D.T. was abused or neglected. In Cook's words, D.T. "was clean, he looked very healthy. He was real healthy, happy, smiling." Cook felt the reason an emergency removal was necessary was because Appellant could not make bond and there were no available relatives with whom to place D.T. Had Appellant been able to make bond, Cook said Appellant would have been in a position to make arrangements on her own to take care of her son.

On March 5, 1998, Cook called Appellant and spoke with her about relinquishing her parental rights. Appellant told Cook that she thought she would be in jail for over twelve months. Cook explained that in every case in which she "feels" a jail term may exceed twelve months, she is instructed to look at relinquishment from "day one." Nevertheless, Cook testified that there was a two-track approach to the case, in which the caseworkers were pursuing both reunification and termination. The case was transferred sometime in March 1998 to Noelle Preston, a caseworker at TDPRS, for the making of a service plan.

On March 12, 1998, Preston developed a family service plan with a long-range goal of family reunification and mailed it to Appellant. The service plan required Appellant to attend parenting classes and counseling, obtain psychological testing, and participate in parole stipulations when applicable.

On March 20, 1998, Appellant wrote Preston and advised her that she had tried to telephone Preston; she asked how D.T. was doing. On six more occasions between June and December 1998, Appellant wrote Preston, asking how D.T. was doing, asking for pictures of him, and requesting visits with D.T. while she was incarcerated. In an October 6 letter, she advised Preston that she did not want D.T. placed for adoption, that she wanted her son, and that she wanted his paternal grandparents to take care of him while she was incarcerated. Appellant advised Preston that she had completed parenting classes and was currently in counseling. It is undisputed that visits between Appellant and her son were denied, based solely on TDPRS "policy": Appellant had been transferred out of the region where her son had been placed and such visits are deemed not to be in the child's best interest.

On June 3, 1998, Preston sent Appellant a letter stating in relevant part:

I have not heard from you for quite some time now. I need for you to call me . . . or send me a letter by June 9, 1998, so we can discuss your service plan. I am reviewing your last plan, dated 3/12/98, since there will be a review court hearing scheduled in July and your plan must be updated for the hearing. You will receive notice of the hearing in a few weeks.

If I do not hear from you by June 9th I will complete your service plan without your participation and mail you a copy. However, your participation is crucial, therefore, we really need to talk.

I am changing the permanency goal from "family reunification" to "adoption." We can talk more about that when you call or write.

Preston confirmed that TDPRS would not have taken the child but for the fact that Appellant was incarcerated. Preston also admitted that Appellant did everything she could while in jail to comply with the service plan. Appellant was scheduled to be released in August 1999, but Preston testified that she believed Appellant's parental rights should be terminated because she had engaged in criminal conduct that resulted in her separation from D.T. by her imprisonment, thereby endangering D.T.'s well-being.

The termination hearing was held on January 21, 1999. Judgment was rendered terminating Appellant's parental rights, as well as those of D.B. and Appellant's former husband as putative father. The trial court signed a corrected decree on April 23, 1999, and filed findings of fact and conclusions of law.

Termination of Parental Rights

In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(1), (2) (Vernon Supp. 2000); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). Proof of one does not relieve the petitioner from establishing the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). It must be emphasized that the child's best interest is not the sole goal of involuntary termination proceedings. The supreme court has made clear that termination "may not be based solely upon what the trial court determines to be the best interest of the child." Id. (emphasis added).

Parents' rights to "the companionship, care, custody and management" of their children are protected to the degree that they are of "federal constitutional dimensions." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982) (holding that the parent-child relationship is "far more precious than any property right"). In a termination case the State seeks not merely to limit those rights but to end them finally and irrevocably--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 1996); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

It is because termination of parental rights is such a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by a heightened burden of proof of "clear and convincing evidence." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); TEX. FAM. CODE ANN. § 161.206(a). This burden is defined as 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 (Vernon 1996); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). This is an intermediate standard that falls between the preponderance burden of ordinary civil proceedings and the reasonable doubt burden of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

The clear and convincing standard of proof creates a higher burden to fulfill because of the severity and permanency of the termination of the parent and child relationship. In re J.N.R., 982 S.W.2d 137, 141 (Tex. App.--Houston [1st Dist.] 1998, no pet.). This court is duty bound to strictly scrutinize termination proceedings and must strictly construe involuntary termination statutes 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).

Standard of Review

Findings of fact entered in a case tried to the court have the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

When presented with legal and factual sufficiency challenges, the reviewing court first reviews...