In the Interest of Tidwell

• Decision Date: 29 November 2000
• Docket Number: No. 06-99-00176-CV,06-99-00176-CV
• Citation: 35 S.W.3d 115
• Parties: (Tex.App.-Texarkana 2000) IN THE INTEREST OF CLYDE H. TIDWELL, JENNIFER M. TIDWELL, BOBBY D. SPRAYBERRY, LEWIS J. TIDWELL, AND SAMANTHA A. TIDWELL, CHILDREN
• Court: Texas Court of Appeals

Page 115

35 S.W.3d 115 (Tex.App.-Texarkana 2000)

IN THE INTEREST OF CLYDE H. TIDWELL, JENNIFER M. TIDWELL, BOBBY D. SPRAYBERRY, LEWIS J. TIDWELL, AND SAMANTHA A. TIDWELL, CHILDREN

No. 06-99-00176-CV

Court of Appeals of Texas, Texarkana

Submitted October 29, 2000

Decided November 29, 2000

On Appeal from the 5th Judicial District Court Cass County, Texas Trial Court No. 99-C-040

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

OPINION

Opinion by Chief Justice Cornelius

Elizabeth Tidwell appeals from a judgment terminating the parent-child relationship between her and her children, Clyde Tidwell (age eleven), Jennifer Tidwell (age nine), Bobby Sprayberry (age six), Lewis Tidwell (age four), and Samantha Tidwell (age one).¹ The court terminated Tidwell's parental rights pursuant to Tex. Fam. Code Ann. § 161.001(1)(D), (E) & (O) (Vernon Supp. 2000).² Tidwell contends that the evidence is legally and factually insufficient to support the trial court's finding that termination was appropriate under Subsection (D) or (E) of Section 161.001(1). She also contends the judgment must be reversed because there is no alternative dispute resolution statement in the Texas Department of Protective and Regulatory Services' (the Department's) petition. We find that the court's action is appropriate pursuant to Section 161.001(1), Subsections (D) and (E), and that the lack of an alternative dispute resolution statement in the petition is not fatal to the judgment.

Tidwell's children lived with her parents, Lidge and Sarah Tidwell, while Tidwell sometimes stayed there and at other times stayed at the homes of other relatives in the area. Tidwell's brothers, Lidge, Jr. and Erby, also lived at their parents' home. Lidge, Jr.'s wife and children also lived there.

The Department was contacted after Jennifer made an outcry of sexual abuse. There was evidence that Jennifer was sexually abused by her uncle, Andrew Blizzard, her fifteen-year-old cousin, Andy Blizzard, and her eleven-year-old brother, Clyde. The Blizzards lived near Lidge and Sarah Tidwell, where the children stayed. Clyde, along with Jennifer, Lewis, and Samantha, also lived there.

Tidwell signed a family service plan ordered by the district court after a hearing, in which she stated she would remove the children from the home and would not let Jennifer and Clyde be alone. However, two days later she contacted Child Protective Services worker Missy Ward and told her that she was returning the children to her parents' home, but had no plans to stay there herself, stating that "she was a young woman [and] she needed to go out." The Department then removed the children and placed them in foster homes.

In its petition the Department alleged that termination was proper under Section 161.001(1), Subsections (D), (E) and (O) of the Texas Family Code, and was in the children's best interest. The trial court agreed, stating in its order that termination was proper under each subsection and was in the children's best interest. Tidwell did not request findings of fact and conclusions of law.

Tidwell first challenges the legal and factual sufficiency of the evidence concerning the Department's allegations under Tex. Fam. Code Ann. § 161.001(1)(D) and (E). When findings of fact and conclusions of law are neither requested nor filed, we infer that the court made all findings necessary to support its judgment, and we will sustain the trial court's decision on any reasonable theory consistent with the evidence, the pleadings, and the applicable law. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Where, as here, a reporter's record is available on appeal, the parties may challenge these implied findings by factual sufficiency and legal sufficiency points in the same way they may challenge jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).

We review a legal sufficiency point of error by considering only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding, and we disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992). We uphold the fact finder's determination if any probative evidence supports it. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). In conducting a factual sufficiency review, we view all of the evidence and will sustain a factual sufficiency challenge only if we conclude that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

The natural right between parents and their children is one of constitutional dimensions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). 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). For that reason, and because termination of parental rights is a drastic remedy, the evidence supporting a termination order must be clear and convincing. Tex. Fam. Code Ann. § 161.206(a) (Vernon 1996); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). 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 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."³ Tex. Fam. Code Ann. § 101.007 (Vernon 1996); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994); In re G.M., 596 S.W.2d at 847.

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). Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2000).

Section 161.001(1)(D) provides for termination where the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(1)(D). Section 161.001(1)(E) provides for termination where the parent "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." Tex. Fam. Code Ann. § 161.001(1)(E). For purposes of Section 161.001(1)(D) and (E),

"[E]ndanger" means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, [but] it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Rather, "endanger" means to expose to loss or injury; to jeopardize.

Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citations omitted).

We find both legally and factually sufficient evidence to justify the trial court's action in terminating Tidwell's parental rights pursuant to Section 161.001(1)(D) and (E). There is evidence from Child Protective Services workers, psychologists, and Tidwell herself that her children lived with Tidwell's parents, mostly in Tidwell's absence, in a home near the residence of several other relatives of Tidwell's; that there were allegations of multiple acts of sexual abuse of Jennifer, age nine, and Clyde, age eleven, over a long period of time; and that the allegations had been brought to the attention of the Department and its officers. There was medical evidence that Jennifer had been sexually abused, in that she had no hymenal ring. The allegations of abuse of Jennifer were against her cousin, Andy, and her uncle, Andrew, who lived very near the children's grandparents. Evidence showed that the alleged abuse was not merely an isolated instance, but was a pattern. Jennifer described the sexual abuse against her to a Department worker in graphic terms. On one occasion Andrew and Andy tied Jennifer to a tree while they sexually attacked her. Tidwell knew her children visited the house where Andrew and Andy lived nearly "all the time," and that most of the visits were unsupervised. Tidwell once reported her father, Lidge Tidwell, for sexually abusing her and her sister in his home. It is unclear if Tidwell recanted the charges against her father. When asked if she had given a statement to police that her father did not sexually abuse her and her sister, she said, "No, we didn't have to, it didn't go nowheres. He got out the next morning." When asked again if she gave the police a statement, she said, "No, 'til now." Even if that answer can be considered a recantation, the trial court was entitled to resolve any conflict in Tidwell's testimony and believe that she had made the allegation and had not recanted. Tidwell's brother, Lidge, Jr., also lived in the home with the children. He too had been accused of sexually molesting the children, and Tidwell knew about those allegations.

There is evidence that Jennifer told her grandmother, whom she calls "Mom," about the sexual abuse by Andrew and Andy, but her grandmother did nothing but tell Jennifer not to do it anymore. Although Tidwell let her children live in their grandparents' home and knew they frequently visited...