J.N.R., In re

• Decision Date: 16 July 1998
• Docket Number: No. 01-97-01036-CV,01-97-01036-CV
• Parties: In the Interest of J.N.R., a Child. (1st Dist.)
• Court: Texas Court of Appeals

Page 137

982 S.W.2d 137

In the Interest of J.N.R., a Child.

No. 01-97-01036-CV.

Court of Appeals of Texas Houston (1st Dist.).

July 16, 1998.

Rehearing Overruled Aug. 31, 1998.

Kyle B. Johnson, Houston, for Appellants.

Patricia Lee Flenniken, Lisa S. Rice, Houston, for Appellees.

Before O'CONNOR, TAFT, and JACKSON B. SMITH, Jr., ^* JJ.

OPINION

JACKSON B. SMITH, Jr., Justice.

The Texas Department of Protective and Regulatory Services brought this suit to terminate the parental rights of Nathaniel Jones, III to his son J.N.R. This is an appeal from the trial court's decree of an involuntary termination of Jones' parental rights. In two points of error, Jones challenges the legal and factual sufficiency of the evidence to support the termination of his parental relationship with J.N.R.

J.N.R. was born in September 1993. In January 1994, Harris County Children's Protective Services ("CPS") received a referral of abandonment and medical neglect of J.N.R., who had been hospitalized since birth and was in need of surgery. J.N.R.'s biological mother, Tamika Roland, had not visited J.N.R. since December 1993. Because attempts at contacting Roland had been unsuccessful, J.N.R.'s biological father was unknown at the time, and because there were no relatives to give consent to J.N.R.'s surgery, CPS took emergency possession of J.N.R.

On January 20, 1994, CPS filed a petition to terminate Tamika's parental relationship with J.N.R and alleged J.N.R.'s biological father was unknown. In June and July of 1994, CPS was appointed J.N.R.'s temporary managing conservator, ¹ and J.N.R. was placed in a therapeutic foster home.

On July 27, 1994, CPS received information that Jones, J.N.R.'s biological father, was incarcerated--and had been since April of 1993. ² Before his incarceration, Jones had not known Roland was pregnant with his child. In August 1994, Jones telephoned CPS three times regarding J.N.R. to request access to J.N.R.'s medical records and to request that photographs of J.N.R. be sent to him. Jones also contacted CPS in September of 1994.

In October 1994, Jones was served with a second amended petition to terminate the parent-child relationship. According to Kathy Whipple, a caseworker for the Texas Department of Protective and Regulatory Services ("TDPRS"), Jones talked to the caseworker who was assigned to the case about the petition, and the caseworker indicated it was a mistake. Notwithstanding this information, Jones filed an answer in the form of a letter indicating his concern for the well being of J.N.R. and attached an executed statement of paternity.

Jones continued to make monthly telephonic inquiries about J.N.R in November of 1994, in January of 1995 through October of 1995, and in December of 1995. He also sent Whipple a letter indicating that he was not able to contact her during November 1995 because of limited phone access. In one phone conversation, Jones requested materials on parenting, and such materials were mailed to him. In another conversation, Jones requested a recent photograph of J.N.R.

Jones was released from prison on February 5, 1996. The next day, Jones telephoned Whipple. According to Whipple, Jones became an active parent in J.N.R.'s life from February of 1996 through July 1996. Whipple received reports from J.N.R.'s foster family that Jones' visits with J.N.R. were going well. Jones visited J.N.R. as scheduled, unless he had a transportation problem. At some point, Jones' scheduled visits increased to unsupervised four-hour visits every other Sunday.

In March of 1996, Whipple and Jones agreed to and signed a family service plan, in which the long-range goal was to return J.N.R. to Jones. According to the plan, Jones had already secured a job and a place to live, but the plan also required him to agree to stay out of jail, participate in his parole tasks, develop his relationship with J.N.R., and maintain his employment.

In early July 1996, Whipple filed a report for judicial review of placement, in which she stated the permanent plan was to place J.N.R. with his father once Jones could demonstrate the ability to care for J.N.R. The report also stated that (1) Jones had agreed to participate in parenting classes, (2) had secured a stable job and a safe home environment, (3) had reviewed his son's medical records, and (4) had attended his son's appointments with the doctor. However, Whipple recommended that, for the time being, J.N.R. continue his current placement and that Jones continue to work toward providing a safe environment.

During the termination hearing, Whipple testified that although Jones participated in parenting classes, his progress notes in therapy were very inconsistent and he did not show up for some of his scheduled drug tests. She also testified that Jones was arrested on July 4, 1996, for disorderly conduct and arrested again on July 28, 1996. Smith, Jones' probation officer, testified that the arrest in Harris County on July 28 was for passing $20 counterfeit bills. In addition, there was evidence that Jones was arrested for resisting an arrest on July 29, 1996.

In her report for judicial review of placement dated December of 1996, Whipple noted that Jones had been incarcerated in July. She further noted that although Jones had agreed to participate in parenting classes and to obtain a safe home environment, he had not completed these tasks. Whipple recommended that Jones' parental rights be terminated.

Upon being released on bail in December of 1996, Jones asked to see J.N.R. Whipple refused to allow Jones to visit J.N.R.. According to Smith, Jones was arrested in February of 1997 for passing a $20 counterfeit bill in Fairfield, Texas. At the time of the termination hearing, Jones was awaiting trial on federal charges in Waco for this last offense. ³

After hearing all the evidence in May 1997, the trial court ordered the termination of Jones' parental rights on the grounds that it was in J.N.R.'s best interests and that (1) Jones voluntarily left J.N.R. in the possession of another without providing adequate support and remained away for a period of at least six months; (2) Jones engaged in conduct which endangered the physical or emotional well being of J.N.R.; (3) Jones constructively abandoned J.N.R., who has been under the managing conservatorship of TDPRS for not less than one year, and Jones did not visit J.N.R. or maintain contact with him and had demonstrated an inability to provide J.N.R. with a safe environment.

The termination of parental rights involves fundamental constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Therefore, evidence supporting the findings to terminate parental rights must be clear and convincing, not just preponderate. 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; 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; Harris, 838 S.W.2d at 941.

This proceeding was instigated under the provisions of section 161.001 of the Texas Family Code. That section sets forth one method by which a court may involuntarily terminate the parent-child relationship. TEX. FAM.CODE ANN. § 161.001 (Vernon 1996). ⁴ Under this section, a court may order the termination of the parent-child relationship if the court finds, by clear and convincing evidence, that: (1) one or more of the acts enumerated in section 161.001(1) was committed; and (2) termination is in the best interest of the child. See Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984). Section 161.001 states in part:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

....

(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;

....

(E) 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;

....

(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than one year, and:

(i) the department or authorized agency has made reasonable efforts to return the child to the parent;

(ii) the parent has not visited or maintained contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment; and

(2) that termination is in the best interest of the child.

TEX. FAM.CODE ANN. § 161.001(1)(C), (E), (N), (2) (Vernon 1996).

In point of error one, Jones contends the evidence is legally insufficient to support the termination of his parental rights. On appeal, in evaluating the legal 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. See Edwards v. Texas Dep't of...