In the Interest of N.K. & D.T.K.

• Decision Date: 18 September 2001
• Docket Number: No. 06-00-00124-CV,06-00-00124-CV
• Citation: 54 S.W.3d 499
• Parties: (Tex.App.-Texarkana 2001) IN THE INTEREST OF N. K. AND D. T. K., CHILDREN
• Court: Texas Court of Appeals

Page 499

54 S.W.3d 499 (Tex.App.-Texarkana 2001)

IN THE INTEREST OF N. K. AND D. T. K., CHILDREN

No. 06-00-00124-CV

Court of Appeals of Texas, Texarkana

Submitted August 2, 2001

Decided August 16, 2001

Rehearing Overruled September 18, 2001.

On Appeal from the 336th Judicial District Court Fannin County, Texas Trial Court No. 33341

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Chief Justice Cornelius

Casey Kenyon appeals from a district court judgment terminating her parental rights to her children, N.K., now four and one-half years of age, and D.T.K., now three years of age. In two points of error, Mrs. Kenyon urges this Court to adopt a heightened standard of appellate review for parental termination cases, and challenges both the legal and factual sufficiency of the evidence to support the court's ruling. In light of previous precedents from this and other appellate courts across the state, we will not adopt the intermediate standard advocated by Mrs. Kenyon, and because we find the evidence is legally and factually sufficient to support the trial court's findings, we affirm the judgment.

In November 1998, Fannin County Child Protective Services (CPS) received a referral alleging that Mrs. Kenyon and Damien Kenyon, the children's father, were physically neglecting and emotionally abusing their children, N.K. and D.T.K. The referral specifically alleged that N.K., then two and one-half years of age, exhibited bruising and had been locked in a closet by his mother and father; Zachary, the eldest of the Kenyons' children, had missed twenty-three days of school; the children would go for days without food; they were often unsupervised; they had a history of severe diaper rash; and both the Kenyons used illegal drugs. CPS received a subsequent referral a few weeks later, with similar allegations, as well as new allegations that Mrs. Kenyon left the children with their father, who could not adequately care for them, for as long as ten hours, during which time the children were not fed properly, and that she would bring crack cocaine home to Mr. Kenyon. During the CPS investigation, the Kenyons admitted they abused drugs and needed assistance. Ronald Hamilton, a CPS investigator, found little evidence to substantiate some of the allegations, but he did determine that Mrs. Kenyon allowed the children to run around the house unsupervised while she slept.¹ Further, Debra Funtez, the court-appointed special advocate, also investigated the Kenyon family and determined they were in "great turmoil" because of the parents' drug abuse. Mrs. Funtez recommended termination of Mrs. Kenyon's parental rights, opining that she was unable to care for the children and likely would not be able to do so in the foreseeable future. Mrs. Funtez also observed that N.K. suffered from various insecurities, feelings of abandonment, and night terrors.

The Kenyons subsequently agreed to a service plan,² but CPS received two additional referrals in early January. First, Zachary apparently did not return to school until a few days after the Christmas break. Second, the Kenyons left the children with a sitter, for over twenty-four hours without sufficient food or water, while purportedly attending a job interview. At this point, CPS representatives picked up the children and placed N.K. and D.T.K. with their paternal grandmother. On January 8, four days after first leaving the children with the sitter, the Kenyons visited the CPS office and admitted they had not been on a job interview, but rather on a "drug binge." N.K. and D.T.K. were ultimately placed in foster care. Mrs. Kenyon was unable to make satisfactory progress on her service plan because her community supervision for a criminal conviction was revoked in May 2000, and she was sentenced to ten years in prison.³

In March 1995, Mrs. Kenyon was sentenced to ten years' confinement, probated, for engaging in organized criminal activity in connection with her burglary of a habitation. Sometime during 1997 or 1998, she tested positive for marihuana and cocaine, at which time the State moved to revoke her community supervision. Mrs. Kenyon's community supervision was subsequently modified to require her placement at a Substance Abuse Felony Punishment Facility (SAFPF). She completed the first phase of the drug treatment program at the SAFPF, but failed to complete the second phase at the Salvation Army treatment center in Dallas.⁴ She was terminated from the program for leaving the facility without permission. This conduct led to the revocation of her community supervision and the reinstatement of her ten-year prison sentence.

Before placing N.K. and D.T.K. in foster care, CPS representatives investigated the possible placement of the children with their maternal grandmother, Sheila Jacobs. However, because of a history of sexual abuse in Jacobs' home, the family's apparent nonchalant attitude toward such abuse,⁵ and the concern that Mrs. Jacobs might return the children to the Kenyons, CPS determined that such placement was not an option.

Section 161.001 of the Texas Family Code governs the involuntary termination of the parent-child relationship. Pursuant to that section, a court may order termination of the parent-child relationship if it finds by clear and convincing evidence one or more of the statutory grounds set out in Section 161.001(1), and determines that termination is in the best interest of the child as required by Section 161.001(2). See Tex. Fam. Code Ann. § 161.001 (Vernon 1996). Here, CPS alleged that termination was proper under Section 161.001(1)(D) and (E). Subsection (1)(D) allows termination where the parent knowingly places or knowingly allows the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child. See Tex. Fam. Code Ann. § 161.001(1)(D). Subsection (1)(E) allows termination where the parent engages in conduct or knowingly places the child with persons who engage in conduct that endangers the physical or emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(1)(E). In its findings of fact and conclusions of law, the trial court found that termination was proper under both Subsections 1(D) and (E). The court also found termination to be in N.K.'s and D.T.K.'s best interests.

Rights that inure in the parent-child relationship are of constitutional dimensions. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed 2d 551 (1972); In re G.M., 596 S.W.2d 846 (Tex. 1980); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). 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 v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1976)). Because the involuntary termination of parental rights is complete, final, and irrevocable, trial court proceedings ordering termination must be strictly scrutinized. Holick v. Smith, 685 S.W.2d at 20; In re J.J., 911 S.W.2d at 439.

For that reason, and because termination of parental rights is such a drastic remedy, the proof required to support a termination order is elevated from a preponderance of the evidence to clear and convincing evidence. Tex. Fam. Code Ann. § 161.001; In re G.M., 596 S.W.2d at 847; In re King, 15 S.W.3d 272, 275 (Tex. App.-Texarkana 2000, pet. denied). The clear and convincing standard is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. It requires "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." Tex. Fam. Code Ann. § 101.007 (Vernon 1996); In re G.M., 596 S.W.2d at 847; In re King, 15 S.W.3d at 275.

Citing Spangler v. Texas Dep't of Protective Servs., 962 S.W.2d 253 (Tex. App.-Waco 1998, no pet.), Edwards v. Texas Dep't of Protective Servs., 946 S.W.2d 130 (Tex. App.-El Paso 1997, no writ), and Neiswander v. Bailey, 645 S.W.2d 835 (Tex. App.-Dallas 1982, no writ), Mrs. Kenyon contends that this heightened quantum of proof at trial requires that the appellate court reviewing an order of termination use a corresponding intermediate standard of review. See Spangler v. Texas Dep't of Protective Servs., 962 S.W.2d at 257; Edwards v. Texas Dep't of Protective Servs., 946 S.W.2d at 137; Neiswander v. Bailey, 645 S.W.2d at 836. However, on two prior occasions, In re King and In re J.J., we have declined to apply this intermediate standard of appellate review, relying on the unambiguous directive of the Texas Supreme Court in Meadows v. Green, 524 S.W.2d 509, 510 (Tex. 1975), which expressly rejected the use of this intermediate standard. In re King, 15 S.W.3d at 275; In re J.J., 911 S.W.2d at 439-40.⁶ In doing so, we join eight of our sister courts of appeals.⁷ We will continue to use the traditional appellate review standard in these kinds of cases unless the Texas Supreme Court changes its explicit ruling in Meadows v. Green, 524 S.W.2d 509, 510 (Tex. 1975).

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 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, we first review the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam). In determining a no-evidence point, we consider...