In the Interest of A.P. and I.P.

• Decision Date: 28 February 2001
• Docket Number: No. 10-00-00105-CV,10-00-00105-CV
• Citation: 42 S.W.3d 248
• Parties: (Tex.App.-Waco 2001) IN THE INTEREST OF A.P. AND I.P., MINOR CHILDREN
• Court: Texas Court of Appeals

Page 248

42 S.W.3d 248 (Tex.App.-Waco 2001)

IN THE INTEREST OF A.P. AND I.P., MINOR CHILDREN

No. 10-00-00105-CV

IN THE TENTH COURT OF APPEALS OF TEXAS, WACO.

February 28, 2001

From the 13th District Court Navarro County, Texas Trial Court No. 97-00-07045-CV.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance, and Justice Gray.

O P I N I O N

VANCE, Justice.

Daniel Peddicord and Natalie Conner had two children who were removed from their home by workers from the Texas Department of Protective and Regulatory Services - Child Protective Services ("CPS") after Daniel and Natalie were arrested on felonies. Daniel was later imprisoned. CPS workers believed the conditions at home endangered the children. After attempts failed over the next year to remedy these conditions, CPS filed a petition to terminate Daniel's and Natalie's parental rights. Natalie relinquished her rights by affidavit. Daniel proceeded to jury trial, after which his rights were terminated.

Daniel complains on appeal that: (1) there was insufficient evidence to support the jury's answers to the three questions which resulted in the termination of his rights, and (2) testimony of statements made by the children was improperly admitted. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Daniel and Natalie lived in a trailer with their son, I.P., age four, and their daughter, A.P., age five and one-half. Natalie's other daughter, S.C., almost seven, also lived with them. The location of S.C.'s father is unknown.

In February of 1997, CPS was called to the home by the Navarro County Sheriff's Department because Daniel and Natalie were being arrested on stolen-property and drug charges. When the CPS worker arrived, she found the inside of the trailer to be virtually uninhabitable and dangerous, with no working toilet or bathtub, one bed for five people, trash and garbage strewn about, exposed electrical wires, holes in the ceiling and floor, and heat from only a heater connected to a small butane tank. I.P. and A.P. were in the trailer. They had not eaten or bathed for a considerable period of time and had lice. I.P. told the CPS worker he smoked marijuana his daddy gave him.

S.C. was retrieved from school by CPS. Although the oldest child, she appeared to be the youngest, being very small for her age, possibly as a result of Fetal Alcohol Syndrome.

All three children were taken into custody by CPS, and were eventually placed in foster care. On March 3, 1997, CPS filed a petition and obtained an emergency order appointing CPS as temporary managing conservator of the three children. A hearing on temporary orders was held on March 7. At the hearing, it was revealed that CPS had files dating back to 1993 regarding incidents involving medical and physical neglect of all three children, and conditions similar to the ones just discovered. The court appointed CPS the temporary managing conservator of the children, and appointed Natalie and Daniel temporary possessory conservators.

Over the next few months, CPS developed Child's Service Plans and worked with Natalie to make changes necessary for the eventual return of the children. Several review and status hearings were held by the court. However, Natalie refused to comply with the service plans. Daniel, who had been in jail, was eventually convicted on January 22, 1998, of four home burglaries and sentenced to ten years in prison. Meanwhile, the children lingered in foster care. Finally, in January of 1998, the Texas Department of Protective and Regulatory Services filed an amended petition to terminate Daniel's and Natalie's parental rights.

Natalie eventually signed affidavits on April 2, 1999, to relinquish her parental rights to all three children. A Judgment of Termination was signed on July 26. Daniel continued to assert his parental rights to I.P. and A.P., and a jury trial was held January 10-12, 2000. The jury returned its verdict, finding by clear and convincing evidence that: (1) Daniel knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) Daniel engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (3) the termination of Daniel's parental rights would be in the best interest of the children.

At the conclusion of trial, Daniel's lawyer approached the bench and the following exchange occurred:

Ms. Glicksman: Your honor, I had requested that I might -

The Court: Oh, yeah. Excuse Me.

Court Reporter: Do you-all want this on the record?

The Court: No. No, it doesn't have to.

Presumably the lawyer requested to withdraw, because when the Order of Termination was signed on January 24, 2000, Daniel filed a pro-se "Motion to Appeal," requesting an appeal and based on indigency, appointment of a lawyer, which was granted on February 3, ten days after the final order.

ISSUE: SUFFICIENCY OF THE EVIDENCE

Termination of parental rights is governed by Tex. Fam. Code Ann. §§ 161.001 - .211 (Vernon Supp. 2001). As alleged in this case, Daniel's rights could be terminated if the jury determined by "clear and convincing evidence":

(1) that the parent has:

. . .

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; [or]

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

. . .

and

(2) that termination is in the best interest of the child.

Tex. Fam. Code Ann. § 161.001 (Vernon 1996 and Supp. 2001). If a jury found that Daniel violated either "D" or "E," and that termination was in the children's best interest, the court could terminate his rights. The jury's findings must be by clear and convincing evidence. Id., §§ 161.001, 161.206(a). Clear and convincing evidence means "that measure or degree of proof which 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." Spangler v. Texas Dept. of Regulatory Services, 962 S.W.2d 253, 256 (Tex. App.--Waco 1998, no pet.); Leal v. Dept. of Protective and Regulatory Services, 25 S.W.3d 315, 319 (Tex. App.--Austin 2000, no pet.).

Preservation and Review of the Complaint

At the outset we note that Daniel failed to preserve his sufficiency complaint. Normally, we do not review complaints in civil jury trials unless they have been preserved in the trial court.¹ Tex. R. App. P. 33.1. However, there is precedent for reviewing an unpreserved sufficiency complaint in an involuntary termination case. In Interest of S. R. M., 601 S.W.2d 766, 769-70 (Tex. Civ. App.--Amarillo 1980, no writ) (parental rights were terminated based on trial evidence of grounds not pled, without objection; case reviewed, and reversed, for insufficient evidence in spite of trial by consent, because of the constitutional dimension of termination cases).

We take heed that the "natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (referencing In re G.M., 596 S.W.2d 846, 846 (Tex. 1980)). "[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1980); Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (grandparent's rights case; ". . . the 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.") (citing Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). A parent's right to the parent-child relationship is "essential," "a basic civil right of man," and "far more precious than property rights." Holick, 685 S.W.2d at 20, (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551 (1972)).

Because of the right's elevated status, the standard of proof required in a termination proceeding is elevated from "preponderance of the evidence" to "clear and convincing evidence." Santosky, 455 U.S. at 747, 102 S.Ct. at 1391. "[S]tate intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause." Id., 455 U.S. at 753, 102 S.Ct. at 1394 (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 37, 101 S.Ct. 2153, 2156, 68 L.Ed.2d 640 (1981) (first dissenting opinion), and at 24-32, 101 S.Ct., at 2158-2162 (opinion of the Court), and at 59-60, 101 S.Ct., at 2176 (STEVENS, J., dissenting)); see also M. L. B. v. S. L. J., 519 U.S. 102, 120, 117 S.Ct. 555, 566, 136 L.Ed.2d 473 (1996) (state statute denying appeal from a termination proceeding because appellant could not afford the cost of the record violated procedural due process and equal protection). Therefore, "termination proceedings should be strictly scrutinized." Holick, 685 S.W.2d at 20.

We are not persuaded that application of Rule 33.1 in an involuntary-termination-of-parental-rights case to preclude review of the sufficiency of the evidence affords the parent due process. To terminate parental rights when there is insufficient evidence only because the complaint was not preserved in the trial court does not adhere to Fourteenth Amendment procedural due process. See Santosky, 102 S.Ct. at 1394. There is no "strict scrutiny" (quoting Holick) in such an approach.

The standard of proof in a termination case - "clear and convincing evidence" - is similar to the standard of proof in a criminal case, i.e., "beyond a reasonable doubt," in that a greater degree of...