In the Interest of M.J.M.L.

• Citation: 31 S.W.3d 347
• Decision Date: 27 September 2000
• Docket Number: No. 04-99-00590-CV,04-99-00590-CV
• Parties: (Tex.App.-San Antonio 2000) In the Interest of M.J.M.L., A Child,
• Court: Texas Court of Appeals

Page 347

31 S.W.3d 347 (Tex.App.-San Antonio 2000)

In the Interest of M.J.M.L., A Child,

No. 04-99-00590-CV

Court of Appeals, Fourth District of Texas

September 27, 2000

From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 97-PA-01506 Honorable John J. Specia, Judge Presiding

[Copyrighted Material Omitted]

Sitting: Catherine Stone, Justice, Sarah B. Duncan, Justice, Karen Angelini, Justice.

Opinion

Opinion by: Karen Angelini, Justice.

The parents of M.J.M.L., Stephanie Michelle Maxon Bell-Ortega and Robert Michael Ortega, separately appeal an order terminating their parental rights. Robert complains that there was no evidence to support the trial court's conclusion that he engaged in conduct which endangered the physical or emotional well being of his child, and, alternatively, that due process required a showing of a causal connection between his conduct and the harm. Stephanie complains that the trial court erred in denying her motion for new trial based on the fact that she was not appointed counsel in a timely fashion. Because we find no reversible error, we affirm the order of termination as to both parents.

BACKGROUND

Stephanie Bell-Ortega delivered her baby, M.J.M.L., immediately after she was arrested on drug charges, and named three men as possible fathers. The baby was born with narcotics in his system. Five days later Appellee, the Texas Department of Protective and Regulatory Services ["the Department"], filed its "Original Petition in A Suit Affecting the Parent-Child Relationship and To Terminate the Parent-Child Relationship." By order that same day, the Department was named temporary managing conservator of the child. After lengthy treatment for drug withdrawal, the infant M.J.M.L. was released from the hospital and placed in a foster home, where he has since remained. Stephanie was convicted on her drug charges and remained incarcerated through the date of trial. At the six-month review hearing, Robert Ortega judicially admitted he was M.J.M.L.'s father. At trial, both Stephanie and Robert appeared in opposition to the termination of their parental rights. M.J.M.L.'s foster parents also appeared and expressed their desire to adopt him. After hearing the evidence, the trial court concluded there was clear and convincing evidence supporting termination of Stephanie's and Robert's parental rights pursuant to the Texas Family Code. See Tex. Fam. Code § 161.001(1) (Vernon 1996)(listing the statutory grounds which must be proven in order to terminate parental rights). Robert and Stephanie separately appeal the termination. We will address Robert's issues first, then turn to Stephanie's issues.

THE FATHER

Robert Ortega raises two issues on appeal: (1) no evidence supported the termination of his parental rights, and (2) he was denied his constitutional rights of due process. We address each in turn.

Legal Sufficiency of the Evidence

Robert asserts in his first issue that there was no evidence to support the trial court's findings with respect to the statutory ground for termination pled by the Department. A "no evidence" issue is a challenge to the legal sufficiency of the evidence. See In the Interest of M.H., L.H. and A.H., 745 S.W.2d 424, 427 (Tex. App. Houston [14th Dist.] 1988, no writ).

The Department bore the burden to prove the existence of a properly pled statutory ground for termination under the Texas Family Code, and that termination was in the best interests of the child. See Tex. Fam. Code. § 161.001 (Vernon 1996); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980). The standard of proof is the clear and convincing evidence standard. See id. The statutory ground at issue in this case is found in section 161.001(1)(E) of the Family Code: "the parent has 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." See Tex. Fam. Code § 161.001(1)(E) (Vernon 1996). The trial court found by clear and convincing evidence that Robert engaged in conduct or knowingly placed the child with persons who engaged in conduct which physically or emotionally endangered the child, and that termination of Robert's parental rights was in the best interests of the child. Robert only challenges the court's findings with respect to the existence of statutory grounds; he does not challenge the court's findings with respect to the best interests of the child.

A legal sufficiency challenge will be sustained only when the record shows: (1) complete absence of evidence of a vital fact, (2) the trial court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) no more than a scintilla of evidence was offered to prove a vital fact, or (4) the evidence conclusively established the opposite of a vital fact. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). To determine whether there is legally sufficient evidence, all the record evidence and inferences must be viewed in the light most favorable to the finding. See Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). Anything more than a scintilla of evidence is legally sufficient to support the finding. See id.

The cornerstone of Robert's sufficiency argument is that the trial court was precluded by law from considering portions of the evidence offered. We will first address those arguments, then turn to our legal sufficiency analysis of the record.

a. Evidence Admissible to Prove Statutory Ground for Involuntary Termination

Given the consummate significance of the termination of a parent's rights to his child, parental termination proceedings are strictly scrutinized on appeal and involuntary termination statutes are strictly construed in favor of the parent. See In the Interest of Shaw, 966 S.W.2d 174, 179 (Tex. App. El Paso 1998, no pet.). The Texas Supreme Court has held that the word "endanger" in the context of section 161.001 of the family code means to "expose to loss or injury; to jeopardize." Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). While subsection (E) endangerment must be a direct result of a parental course of conduct, the conduct described does not have to be specifically directed at the child; nor does it have to cause an actual injury to the child or even constitute a concrete threat of injury to the child. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In the Interest of R.D., 955 S.W.2d 364, 368 (Tex. App. San Antonio 1997, pet. denied). Rather, the statute is satisfied by showing that parental conduct simply jeopardized the child's physical or emotional well-being. See Director of the Dallas Cty. Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 733 (Tex. App.--Dallas 1992, no writ). The parental course of conduct includes both the parent's actions and the parent's omissions or failures to act. See In the Interest of B.S.T., 977 S.W. 2d 481, 484 (Tex. App Houston [14th Dist.] 1998, no pet.).

Robert first argues that the trial court could not consider any evidence of conduct which may have occurred before the child was born, referring us to the definition of "child" in section 101.003 of the code. Tex. Fam. Code § 101.003 (Vernon 1996)("'Child' or 'minor' means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes."). Robert asserts that this definition of child precludes consideration of events which occurred before a child was born. However, no court has held, and we do not find that the statutory definition of "child" conflicts with a definition of a course of conduct endangering a child which incorporates conduct occurring before and after a child's birth. Texas courts look to what the parent did both before and after the child's birth to determine whether a course of conduct endangering the child exists. See Avery v. State, 963 S.W.2d 550, 553 (Tex. App. Houston [1st Dist.] 1997, no pet.); Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App. Dallas 1995, no writ).

Robert next argues that as a matter of law the trial court cannot consider evidence of conduct which may have occurred before the rendition of a valid paternity order, citing our opinion in Djeto v. Texas Dept. of Protective & Regulatory Servs., 928 S.W.2d 96 (Tex. App. San Antonio 1996, no writ). He misapplies our holding. The father in Djeto did not know the child was his. See id. at 97. We held that evidence of his conduct prior to the determination of paternity could not be considered in a determination of whether he knowingly placed or allowed the child to remain in conditions or surroundings endangering her physical or emotional well-being. See id. at 98. The termination was thus based on section 161.001(1)(D) of the family code, which is the knowing placement of a child in an endangering environment. As this court recently explained in In the Interest of Stevenson, 27 S.W.3d 195, 201-03 (Tex.App.-San Antonio 2000, no pet. h.),while knowledge of paternity is a prerequisite to a showing of knowing placement of a child in an endangering environment, it is not a prerequisite to a showing of a parental course of conduct which endangers a child under section 161.001(1)(E). See also In the Interest of M.D.S., 1 S.W.3d 190, 198 (Tex. App. Amarillo 1999, no pet.). We overrule Robert's argument on the admission of conduct evidence occurring prior to the child's birth. Having addressed Robert's evidentiary concerns, we now turn to our legal sufficiency analysis of the record.

b. The Evidence is Legally Sufficient to Support the Termination Order

Our review of the record in the light most favorable to the trial court's findings reveals more than a scintilla of evidence to support the finding that Robert engaged in a course of conduct which...