In the Interest of W.C.

• Decision Date: 06 September 2001
• Docket Number: No. 14-00-01280-CV,14-00-01280-CV
• Citation: 56 S.W.3d 863
• Parties: <!--56 S.W.3d 863 (Tex.App.-Houston 2001) IN THE INTEREST OF W.C. Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 863

56 S.W.3d 863 (Tex.App.-Houston [14th Dist.] 2001)

IN THE INTEREST OF W.C.

No. 14-00-01280-CV

Court of Appeals of Texas, Houston (14th Dist.).

September 6, 2001.

On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 99-04920J

[Copyrighted Material Omitted] Panel consists of Justices Yates, Fowler, and Wittig.

OPINION

Don Wittig, Justice

This is a termination of parental rights case. We first address the proper standard of review for legal and factual sufficiency challenges where the burden of proof at trial was by clear and convincing evidence. We then determine whether an unobjected-to hearsay report admitted at trial showing that appellant abused her child constituted legally and factually sufficient evidence to support the trial court's finding that appellant engaged in conduct endangering the physical and emotional well-being of her child. We affirm.

Background

Appellant is the biological mother of W.C. The Texas Department of Protective and Regulatory Services ("TDPRS") filed suit to terminate their parent-child relationship in 1999. At the time, appellant was sixteen years old and W.C. was approximately six months old. In a separate proceeding, the State filed criminal charges against appellant in juvenile court alleging injury to a child. The criminal case was unresolved at the time of the termination trial.

Bernie Powell was the court-appointed child advocate and guardian ad litem for W.C. At the beginning of her testimony, TDPRS offered, and the court admitted, without objection, the "Court Report"that Powell had prepared for that day's trial. Powell agreed that the report was the "shorthand rendition" of her testimony concerning W.C. The report stated that:

-- W.C. "apparently" broke his arm but appellant did not seek medical care for him until eight days after his injury;

-- When appellant took W.C. for treatment to Texas Children's Hospital, Dr. Paul Sirbougl diagnosed the child with multiple fractures of the arms, legs, scapula, "several skull fractures," and a subdural hematoma, the latter of which was approximately a month old. The doctor concluded that the injuries were consistent with medical neglect and battered child syndrome;

-- Powell interviewed Jennifer Stansbury, a child abuse social worker for 30 years. Stansbury stated that a spiral fracture to the arm, one of W.C.'s injuries, requires "horrific force" to sustain. Additionally, she stated that a child who incurs extensive and severe injuries during the first six months of his life could be at high risk for future physical and emotional problems;¹

-- Powell interviewed Estrude Ortiz and her 20-year-old daughter, Rosa Rodriguez. Appellant lived at Ortiz' residence at the time of the child's injuries. In separate interviews, both witnesses stated that appellant was very rough with W.C. and often had to be scolded for hitting him. Additionally, Powell reported that five-year-old Angel Ortiz, who lived in the same residence, told her and two other investigators that appellant often hit the child;

-- Appellant told Powell she had left W.C. with a woman, only identified as "Beatriz," to go to the store. Beatriz was a stranger who stayed at the Ortiz' residence, while Ortiz was out of town, for three days. Appellant said that when she returned from the store, Beatriz told her that she had bathed the baby, that the baby fell, and that is how he received the "swollen arm" and "bump on the head." Powell could not locate Beatriz;

-- Appellant could not explain W.C.'s other injuries; however, appellant stated that she and the child slept in the same bed and one night she rolled on top of him. Appellant also asserted she had a "seizure/stroke" at age eleven, which weakened one side of her body and causes her to fall often.

At trial, when asked if appellant could provide the child with a safe and stable environment, Powell testified "I'm not sure that she can." Powell also asserted that termination would be in W.C.'s best interests because he needed "permanency." Powell testified that a family was interested in adopting W.C. but there were some bureaucratic delays hindering the process. Powell added that, in the meantime, W.C. was doing well in his foster home.

Sheila Hazley, the TDPRS caseworker, testified that appellant had a psychological evaluation and a family assessment done. When asked if there was anything in the assessment stating that appellant could not properly care for the child, she replied "no." Neither report was offered, nor was the content of the reports discussed. Hazley testified it would be in the best interest of the child to terminate appellant's parental rights because appellant was a minor, alone in this country without parents, a support system, or residence.

Finally, TDPRS called appellant as a witness and asked her if she had pled guilty to injury to a child. Appellant responded, "I haven't injured the child and if it happen " Appellant's own lawyer then interrupted, objecting to her answer as non-responsive. The court sustained the objection.

At the close of evidence, the trial court ordered the termination of parental rights, finding, among other things, that (1) appellant engaged in conduct which endangered the physical and emotional well-being of the child, and (2) the termination was in the best interest of the child. Tex. Fam. Code Ann. §§ 161.001(1)(E), (2). Appellant now argues that the evidence was legally and factually insufficient to support the court's findings.

Standard of Review

The natural right existing between a parent and child is one of constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (holding that the parent-child relationship is "far more precious than any property right"). Therefore, the involuntary termination of parental rights interferes with fundamental constitutional rights. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). Involuntary termination proceedings must be strictly scrutinized in favor of preserving the relationship. See Holick, 685 S.W.2d at 20. In light of the grave nature of the proceedings and the constitutional rights implicated, the Texas Supreme Court adopted the clear and convincing standard of proof for the trial of actions seeking termination of parental rights. G.M., 596 S.W.2d at 847. More recently, the requirement of clear and convincing evidence to support termination has been codified in the Family Code. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). "Clear and convincing evidence" means 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.

There is some disagreement among Texas intermediate appellate courts whether the clear and convincing burden at trial requires us to review the legal sufficiency and factual sufficiency of a judgment under the same heightened scrutiny.² Further, as discussed below, the question of whether to apply heightened scrutiny to a legal sufficiency review and to a factual sufficiency review do not necessarily involve the same issues.

Recently, the Texas Supreme Court recognized that a higher standard of review was mandated by federal law where rights of Constitutional dimension were implicated, namely free speech. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000). The Turner court stated:

Federal constitutional law dictates our standard of review on the actual malice issue, which is much higher than our typical "no evidence" standard of review. . . . Under this standard, we must independently consider the entire record to determine whether the evidence is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of "actual malice."

Id. (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 510-11 (1984) (other citations omitted)).

In principle, then, we face a similar question in this case because the right of natural parents in the care, custody, and management of their child is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. See Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). In view of the importance of this fundamental right, the Santosky Court held that a statute allowing for termination of parental rights by a preponderance of the evidence standard violated the Due Process Clause. Id. at 768. After reviewing the interests at stake, the Court held that a clear and convincing burden at trial was constitutionally mandated where the state seeks to terminate parental rights. Id. at 769.

As recognized with regard to First Amendment rights in Turner, we should be no less vigilant in our review of the termination of parental rights. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (characterizing parental rights as "essential" and "a basic civil right of man"). The heightened protection for those fundamental rights would be rendered meaningless if a termination judgment were erroneously rendered at trial based upon less than clear and convincing evidence, but the reviewing court was required to affirm if there was merely "some evidence" meeting the preponderance standard. Only flawed logic could argue that both the constitutional and legislative requirements apply at the trial level and not at the appellate level. In re K.R., 22 S.W.3d at 97 (Wittig, J., concurring). If we fail to apply the higher constitutional and statutory standards, we, too, fail our own constitutional responsibilities. Id. As such, consistent with the principles enunciated in federal constitutional law, our statutes, and Turner, we utilize the heightened standard in our review of an order terminating parental rights.

We should note, however, that Turner and the federal cases relied upon within, did not address review of these rights as they pertain...