Interest of R.D.

• Decision Date: 24 September 1997
• Docket Number: No. 04-96-00364-CV,04-96-00364-CV
• Citation: 955 S.W.2d 364
• Parties: In the Interest of R.D., A Child.
• Court: Texas Court of Appeals

Page 364

955 S.W.2d 364

In the Interest of R.D., A Child.

No. 04-96-00364-CV.

Court of Appeals of Texas,

San Antonio.

Sept. 24, 1997.

Rehearing Overruled Oct. 16, 1997.

Tricia L. Hamil, Hamil & Hamil, P.L.L.C., Kerrville, for Appellant.

Scott F. Monroe, Kerrville, Johnnie Beth Page, Asst. Atty. Gen., Assistance Division, Austin, for Appellee.

Before STONE, GREEN and DUNCAN, JJ.

OPINION

DUNCAN, Justice.

R.D.'s biological parents appeal the trial court's judgment terminating their parental rights. We affirm.

THE APPELLATE RECORD

As a preliminary matter, we must explain the appellate record. In preparing to draft this opinion, we reviewed the transcript and found a trial court order sealing the entire trial court record. We were not previously aware of this sealing order because the district clerk filed an unsealed transcript, the court reporter filed an unsealed statement of facts, and the attorneys failed to bring the sealing order to our attention. We have thus been required to confront the appropriate means of drafting an opinion when the trial court's record is sealed. With no case law or rule to guide us, we have employed the procedure described below.

We first reviewed the appellate record to determine whether any court order unsealed the trial court's record. Finding none, we next attempted to determine whether any party voluntarily waived the right to have the record remained sealed pending this appeal. See Fox v. Doe, 869 S.W.2d 499, 506 (Tex.App.--San Antonio 1993, writ denied). So far as we have been able to determine, no party has waived the right to have the trial court's record remain sealed. But all parties have waived the right to have the record in this court sealed; no party has asked that we seal this court's record, and all parties have tendered and filed their briefs without a sealing requesting.

In light of these circumstances:

(1) We order the entire trial court record with the exception of the trial court's orders and judgments resealed. See TEX.R. CIV. P. 76a(1); TEX. GOV'T CODE ANN. § 552.022(12) (Vernon 1994) (orders, judgments, and opinions are public documents and may not be sealed).

(2) This opinion employs only the facts voluntarily disclosed by the parties in their briefs.

We also take this opportunity to remind trial court officials of their duty to maintain the confidentiality of sealed records unless and until they are released from that obligation by court order.

FACTUAL BACKGROUND

When R.D. was born on May 15, 1993, she suffered from heroin withdrawal symptoms; consequently, the hospital immediately contacted the Texas Department of Protective and Regulatory Services. Within a couple of weeks, the Department filed this suit affecting the parent-child relationship. For R.D.'s protection, the Department also requested an emergency order naming the Department as R.D.'s temporary managing conservator. The trial court granted the requested emergency relief. Therefore, when R.D. was released from the hospital, the Department placed her in foster care where, with the exception of one visit to her parents' home, she remained until the time of trial.

For over two years after R.D.'s birth, the Department worked with her biological parents, Maria Josephine Ybarra and Rumaldo Dominguez, to enable them to assume R.D.'s custody and care. Ultimately, however, the Department asked the trial court to terminate their parental rights. But at the trial on the merits set for April 27, 1995, neither Ybarra nor Dominguez appeared. Apparently, both were afraid Ybarra would be arrested for probation violations if she appeared in court. In an effort to obtain R.D.'s biological parents' appearance, the trial court granted Ybarra immunity and reset the trial for May 11.

Following the May 11th trial, the trial court terminated Ybarra's and Dominguez's parental rights. However, the trial court also granted Ybarra's and Dominguez's oral motion for a new trial and gave them a second opportunity to demonstrate they could properly parent R.D. by imposing in the new trial order twenty-eight requirements, terms, and conditions indicative of effective parenting. The order further provided the failure to meet each of these requirements, terms, and conditions would be considered prima facie evidence of a lack of qualifications to fulfill the parenting role.

The second trial on the merits was held on October 5. After hearing the evidence introduced at this trial, the trial court again terminated Ybarra's and Dominguez's parental rights. In support of its judgment, the trial court expressly found termination was in R.D.'s best interest, and the evidence satisfied two statutory grounds for termination. See TEX. FAM.CODE ANN. §§ 161.001(1)(D), (E), 161.001(2) (Vernon 1996). Ybarra and Dominguez appealed.

TERMINATION OF PARENTAL RIGHTS

In four points of error, Ybarra and Dominguez argue the evidence is legally and factually insufficient to support the trial court's findings supporting the termination of their parental rights. We hold there is legally and factually sufficient evidence supporting the trial court's subsection E finding, and only this finding is necessary to the judgment of termination. Accordingly, we do not discuss the subsection D finding. See Flowers v. Texas Dep't of Human Resources, Tarrant County Welfare Unit, 629 S.W.2d 891, 893 (Tex.App.--Fort Worth 1982, no writ).

Grounds for Involuntary Termination

To terminate parental rights, the evidence must establish (1) termination is in the child's best interest, and (2) one of the statutory grounds for termination. TEX. FAM.CODE ANN. § 161.001 (Vernon 1996). In determining the child's best interest, the factfinder may consider the child's desires and current and future physical and emotional needs, as well as the current and future physical and emotional danger the child may confront. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). With respect to the party or parties seeking custody, the factfinder may consider their respective parenting abilities, the stability of the homes or other placement they propose, acts or omissions indicating an existing parent-child relationship is not a proper one, and any excuse for those acts or omissions. Id.

The statutory termination grounds alleged by the Department in this case focus on the child's emotional and physical well-being. The subsection D ground thus permits termination if a 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," while the subsection E ground permits termination if a 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)(D), (E) (Vernon 1996).

Both subsections thus require "endangerment"--that is, jeopardizing the child's physical or emotional well-being. Texas Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). But they differ as to the cause of the endangerment. See In the Interest of S.H.A., 728 S.W.2d 73, 85 (Tex.App.--Dallas 1987, writ ref'd n.r.e.). We believe they also differ in two other respects--whether a "course of conduct" and direct relationship between the parental conduct and the cause of the endangerment are required.

On its face, subsection E permits termination if the party seeking termination proves parental conduct that itself causes endangerment, while subsection D permits termination if the party proves a parental act or omission caused a child to be placed or remain in an endangering environment. See id. Under both subsections, therefore, termination must rest upon parental conduct. But subsection D permits termination because of a single act or omission, while subsection E requires a "course of conduct." See Smith v. Sims, 801 S.W.2d 247, 250 (Tex.App.--Houston [14th Dist.] 1990, no writ).

Subsections D and E also differ in the relationship each requires between the parental conduct and the endangerment. Subsection D requires the endangerment to be the direct result of the child's environment and only an indirect result of a parental act or omission; subsection E, on the other hand, requires the endangerment be a direct result of parental conduct. Subsection D thus permits a less than direct relationship between the parental conduct and the endangerment but it also requires an additional factor--an endangering environment--to be proved, while subsection E requires a direct relationship but this relationship, standing alone, justifies termination.

In any event, even under the subsection E standard, the endangering parental conduct need not be directed at the child specifically, it need not have caused an actual injury to the child, and it need not even constitute an "actual or concrete" threat of injury to the child. Director of the Dallas Cty. Child Protective Serv. Unit of the Texas Dep't of Human Serv. v. Bowling, 833 S.W.2d 730, 733 (Tex.App.--Dallas 1992, no writ). Instead, subsection E is satisfied simply by showing a parental course of conduct endangered the child's physical or emotional well-being. Id.

Standards of Review

In the trial court, the child's best interest, as well as the statutory ground or grounds for termination, must be proved by clear and convincing evidence. TEX. FAM.CODE ANN. § 101.007 (Vernon 1996); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980)....