King v. Texas Department of Protective and Regulatory Services, No. 08-03-00100-CV (TX 7/2/2004)
| Decision Date | 02 July 2004 |
| Docket Number | No. 08-03-00100-CV.,08-03-00100-CV. |
| Parties | PAMELA BABCOCK KING, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee. |
| Court | Texas Supreme Court |
Appeal from the 318th Judicial District Court of Midland County, Texas, (TC# FM 38,886).
Before Panel No. 3, BARAJAS, C.J., LARSEN, and CHEW, JJ.
This is an appeal from the involuntary termination of parental rights under Chapter 161.001 of the Texas Family Code. Tex. Fam. Code Ann. § 161.001 (Vernon 2002). For the reasons stated, we affirm.
Appellant, Pamela Babcock King, is one of six children of Sharon Babcock ("Babcock") and Philip Babcock. King has six children, four of whom were the subject of this termination suit. R.K. was born October 17, 1990 and was twelve years old at the time of trial. K.K. was born March 17, 1992 and was ten years old at the time of trial. The twin girls, J.J.S.B. and A.A.S.B., were born August 18, 1998 and were four years old at the time of trial. The four oldest children were the subjects of the termination suit. J.B., King's fifth child, was born January 7, 2000 and was almost three years old at the time of trial. King's sixth child was born seven months before trial and was given up for adoption.
King married Leland King when she was sixteen years old. He was twenty-seven at the time they were married. Leland is the father of R.K. and K.K. She does not know who the father of the twins is. Earnest Wompler is the father of J.B. King testified that Gary Bennett, her "boyfriend at the time", is the father of her sixth child.
Appellee, the Texas Department of Protective and Regulatory Services (the "Department"), became involved with the Babcock family in 1979 when King was eight years old. The Department investigated numerous allegations regarding the Babcock household over the next twenty years.
King and Leland were married for seven years. During that time, Leland did not keep steady employment and when he was not working, they lived with Leland's sister. When King left Leland, she was twenty-three, R.K. was three and K.K. was almost one. King moved into her parent's home where four of King's younger siblings were still living. King then moved out of the home and left R.K. and K.K. in Babcock's care. King admitted moving in and out of the Babcock home when things did not work out with her current boyfriend. She lived in Maryland in 2000-2001 and also in Missouri at some point. King admitted that while the children were living in the Babcock house, she "would just come back and forth into town."
King admitted smoking marijuana and using other drugs. She admitted using drugs during her pregnancies with K.K. and the twins. While pregnant with K.K., King told her obstetrician gynecologist that she had smoked marijuana the previous day and night, January 30, 1992. On February 2, 1992, King tested positive for marijuana at Midland Memorial Hospital. King took another drug screen on March 17, 1992, the day K.K. was born, and again tested positive for marijuana. When questioned about her marijuana use, King said that she did not believe marijuana was a drug; she considered it to be an herb. She explained that she was quoting Leland and that she "just believed anything he said."
The twins, J.J.S.B. and A.A.S.B., were born premature at seven months. J.J.S.B. had a heart murmur and was in a lot of distress when she was born. A.A.S.B., the first-born twin, tested positive for marijuana at birth. The twins were hospitalized for some time and on one visit, King showed up in an inebriated state and reeking of alcohol. Her probation officer was notified and King was picked up and taken home. King admitted that she was a "major alcoholic" at this point in her life.
King also admitted that she had emotional problems, "a lot of depression" starting in 1993. King went to several "mental hospitals" and was admitted five times in 1993. Her mental health problems continued into 1994 and she was again admitted to mental hospitals in 1996. King admitted to being suicidal twice in her life. A progress note from Midland Memorial Hospital in 1998 concludes that King "has a personality disorder, manic depressant." King would visit the twins for breast-feeding and began "demonstrating more and more bizarre behavior." The hospital decided that King should no longer be allowed to breast-feed because there was a belief that she was endangering the twins by removing them from the unit.
Dr. David Koch, a clinical psychologist, conducted psychological evaluations of King on February 28, 2000 and February 6, 2002. Dr. Koch testified that King "exhibited instability in her relationships over the years, poor decision-making, dependence on others that led to abusive kinds of relationships, and inability to really effectively establish or maintain an adult type of identity." He also noted that she was "very unstable" and was involved in "abusive types of relationships in the marital area as well." He stated that she had "difficulties managing herself" and made "poor choices in her relations with males." Dr. Koch concluded that King was not the type of individual who could provide a safe and nurturing environment for children.
In January of 1996, King was convicted of misdemeanor possession of marijuana and spent ten days in jail. On January 18, 1996, King was arrested for failing to identify to a police officer and spent five days in jail. She was also arrested for unauthorized use of a motor vehicle in 1996. On March 20, 1996, King was again arrested for failing to identify to a police officer and spent three days in jail. On June 3, 1996, King was arrested for possession of drug paraphernalia. On October 31, 1997, King was arrested for public intoxication. On June 4, 1998, King was arrested for possession of marijuana and for possession of drug paraphernalia and spent fifteen days in jail. On July 10, 1998, King was arrested for felony bond forfeiture for failing to appear at a court date on the unauthorized use of a motor vehicle charge. King also had a misdemeanor conviction for hindering apprehension. King was on probation for felony bond jumping at the time of trial.
King stated at trial that she could not read, did not have a driver's license, and had never been employed. At the time of trial, she lived with her father in Odessa and received $ 550 a month in Social Security Disability Income. King's depression is listed as her disability.
King had left Midland and was supposedly living in Rankin when her four children were first removed from Babcock's house in April of 2000. When the children were placed in the Department's custody, King signed family service plans that set out tasks she needed to accomplish in order to be reunited with her children. At some point though, King left Midland and was not there when the children were subsequently placed back in the Babcock household on December 4, 2000. The Department removed the children from Babcock's house again in December of 2001 and this removal led to the Department seeking termination of King's parental rights. The suit was tried to a jury. The charge submitted to the jury instructed that, to terminate King's parental rights, the jury would have to find by clear and convincing evidence that at least one of the events set out in the four grounds detailed in the charge occurred and that termination of King's parental rights would be in the best interest of the children. The jury terminated King's rights to R.K., K.K., J.J.S.B. and A.A.S.B. This appeal follows.
In nine issues, Appellant attacks the legal and factual sufficiency of the evidence to support the termination of her parental rights and asserts that she received ineffective assistance of counsel.
A parent's rights to "the companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); accord Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The United States Supreme Court, in discussing the constitutional stature of parental rights, states, "[T]he interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). Nonetheless, while parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. Id.
In proceedings to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the Department must establish one or more of the acts or omissions enumerated under subsection (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2002); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Because of the elevated status of parental rights, the quantum of proof required in a termination proceeding is elevated from the preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 746, 102 S.Ct. at 1391; see also Tex. Fam. Code Ann. § 161.001.
Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction...
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