In the Interest of K.C.M.

• Decision Date: 07 October 1999
• Citation: 4 S.W.3d 392
• Parties: <!--4 S.W.3d 392 (Tex.App.-Houston 1999) IN THE INTEREST OF K.C.M., A CHILD. NO. 01-98-00133-CV. Court of Appeals, First District of Texas
• Court: Texas Court of Appeals

Page 392

4 S.W.3d 392 (Tex.App.-Houston[1st Dist.] 1999)

IN THE INTEREST OF K.C.M., A CHILD.

NO. 01-98-00133-CV.

Court of Appeals, First District of Texas.

October 7, 1999.

Rehearing Overruled November 4, 1999.

On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 96-98382J.

Panel consists of Justices Mirabal, Hedges, and Smith.^*

OPINION

Margaret Garner Mirabal, Justice.

This is a termination of parental rights case.

The mother, Kimberly Lyne Martin, appeals the judgment terminating her parental rights to her son, K.C.M., arguing that the termination statute is unconstitutionally vague, and that the evidence is insufficient to support the termination. The attorney ad litem for the child, who was appointed to represent the best interests of the child, also disputes the sufficiency of the evidence and argues for reversal of the judgment. ¹ We reverse and remand.

Case Background

K.C.M., a male, was born on December 30, 1994. On August 6, 1996, when K.C.M. was 19 months old, the Texas Department of Protective and Regulatory Services (TDPRS), took possession of K.C.M.

The next day, August 7, 1996, TDPRS filed a "suit for the protection of a child in an emergency and original petition in suit to affect parent-child relationship," stating there was an immediate danger to K.C.M.'s health or safety and seeking temporary custody. The trial court issued an initial emergency order approving the removal of K.C.M. from his parents and appointing TDPRS as his sole temporary managing conservator pending a hearing. Following a hearing held August 19, 1996, the trial court appointed TDPRS as temporary managing conservator.

In February 1997, TDPRS presented a family service plan that sought family reunification, not termination of parental rights. Two weeks later, on March 3, 1997, TDPRS filed a first amended petition, seeking for the first time to terminate the parent-child relationships between K.C.M. and his mother and father. On September 18, 1997, the Associate Judge conducted a one-day bench trial to hear the termination suit. At the close of trial, the Associate Judge announced his ruling from the bench that both parent-child relationships were to be terminated, and that TDPRS was to be appointed sole managing conservator. On October 6, 1997, the trial court signed a Decree for Termination, which adopted the Associate Judge's recommendation. The mother, Kimberly Lyne Martin, appeals. ²

Constitutionality of the Family Code

In her first point of error, Martin asserts the relevant statute, section 161.001 of the Family Code, is unconstitutionally vague and ambiguous. Martin raises this complaint for the first time on appeal. Accordingly, Martin waived this point by not presenting it to the trial court. Tex. R. App. P. 33.1; Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993).

We overrule point of error one.

Sufficiency of the Evidence

In points of error two and three, Martin asserts the evidence was legally and factually insufficient to support the trial court's findings.

To terminate parental rights, the trial court must make two findings. First, the parent must have committed one of the acts prohibited under section 161.001(1) of the Texas Family Code. Tex. Fam. Code Ann. § 161.001(1) (Vernon Supp. 1999); ³ Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). Second, termination of parental rights must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(2); Richardson, 677 S.W.2d at 499. The trial court made the findings that Martin committed the act prohibited under section 161.001(1)(E), and that termination was in the child's best interest; the Decree for Termination states:

The Court finds by clear and convincing evidence that termination of the parent-child relationship between Kimberly Lyne Martin aka Kim Cressa, and the child, [K.C.M.], is in the best interest of the child and further that the mother:

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.

"Endanger" means to expose the child to loss or injury or to jeopardize. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam). "Best interest of the child" is to be determined from consideration of the following factors:

1. The child's desires;

2. The child's physical and emotional needs, now and in the future;

3. The emotional and physical danger to the child, now and in the future 4. The parental ability of the individuals seeking custody;

5. The programs available to assist these individuals in promoting the child's best interest;

6. The plans for the child by the individual or agency seeking custody;

7. The stability of the home or proposed placement;

8. The parent's act or omissions that may indicate the existing parent-child relationship is not a proper one; and

9. Any excuse for the parent's acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). There is a strong presumption that the best interest of the child is served by keeping custody in the natural parent. Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.). It is the TDPRS's burden to rebut this presumption. See in re R.E.W., 545 S.W.2d 573, 581 (Tex. Civ. App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.).

The termination of parental rights involves fundamental constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Evidence supporting the findings to terminate parental rights must be clear and convincing, not just preponderate. Tex. Fam. Code Ann. § 161.001; In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980); Harris v. Herbers, 838 S.W.2d 938, 941 (Tex. App.-Houston [1st Dist.] 1992, no writ). The clear and convincing standard of proof is intentionally placed on the party seeking the termination of the parental rights, so as to create a higher burden to fulfill, because of the severity and permanence of the termination of the parent-child relationship. Spurlock v. Texas Dep't of Protective & Regulatory Servs., 904 S.W.2d 152, 155 (Tex. App.-Austin 1995, writ denied); Harris, 838 S.W.2d at 941. This standard requires more proof than the preponderance of the evidence standard in civil cases, but less than the reasonable doubt standard in criminal cases. G.M., 596 S.W.2d at 847; In the Interest of J.N.R., 982 S.W.2d 137, 141 (Tex. App.-Houston [1st Dist.] 1998, no pet.); Harris, 838 S.W.2d at 941. The clear and convincing standard is the 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 proved. G.M., 596 S.W.2d at 847; J.N.R, 928 S.W.2d at 141; Harris, 838 S.W.2d at 941.

On appeal, in evaluating the sufficiency of the evidence supporting a trial court's decision to terminate parental rights, the standard of review is not affected by the heightened burden of proof required in the trial court. J.N.R., 928 S.W.2d at 141; see also Edwards v. Texas Dep't of Protective and Regulatory Servs., 946 S.W.2d 130, 137 (Tex. App.-El Paso 1997, no writ). In conducting a legal sufficiency review, we consider only the evidence and inferences tending to support the fact finding, and we disregard all contrary evidence and inferences. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); Edwards, 946 S.W.2d at 137; In the Interest of H.C., 942 S.W.2d 661, 664 (Tex. App.-San Antonio 1997, no writ). If any evidence of probative force exists to support the finding, we will uphold the decision. Edwards, 946 S.W.2d at 137. In conducting a factual sufficiency review, we view all of the evidence; we will sustain a factual sufficiency challenge only if, after viewing all the evidence, we conclude 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) (per curiam); Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.-Houston [1st Dist.] 1993, writ denied).

The Evidence

Kimberly Martin, the mother, testified she started smoking marihuana when she was 13 years old. Both of her parents were drug addicts.

Martin admitted she smoked marihuana at the end of her pregnancy with K.C.M. When Martin came home from the hospital after K.C.M.'s birth, TDPRS contacted her. On January 2, 1995, when K.C.M. was three days old, Martin signed a "Child Safety Evaluation Plan" prepared by TDPRS. The Plan provided that Martin agreed to random drug testing by TDPRS, and that K.C.M.'s paternal grandmother, Joanne Arnold, would monitor the situation. Martin was living with Arnold. Martin admitted that she went through some drug screenings, and she tested positive for marihuana. According to Martin, TDPRS soon stopped monitoring the family because K.C.M. was healthy.

When K.C.M. was one-year-old, TDPRS was back in contact with the family pursuant to a complaint. On January 23, 1996, Martin signed a new "Child Safety Evaluation Plan" that provided she and K.C.M.'s father would submit to a drug assessment at "New Spirit" on January 30, 1996; that until then, they would refrain from using any drugs; and that they would not leave K.C.M. unsupervised at any time.

Martin admitted that, in 1996, she was using crack cocaine on a daily basis, and even on an hourly basis. She testified that she never used crack cocaine in front of K.C.M.; when she ingested crack in Arnold's house, K.C.M. would always be in another room. Martin financed her drug habit through prostitution.

During that period of time, the paternal grandmother, Ms. Arnold, and the father were caring for K.C.M. Ms. Arnold kicked Martin out of the house because of her prostituting and drug abuse; Ms. Arnold continued to care for K.C.M. Martin felt she was leaving K.C.M. in an "okay" situation when she left him with Ms. Arnold, because TDPRS had designated...