Leal v. Texas Dept. Prot. & Reg. Serv.

• Decision Date: 27 July 2000
• Citation: 25 S.W.3d 315
• Parties: (Tex.App.-Austin 2000) Tina Leal, Appellant v. Texas Department of Protective and Regulatory Services, Appellee NO. 03-98-00516-CV
• Court: Texas Court of Appeals

Page 315

25 S.W.3d 315 (Tex.App.-Austin 2000)

Tina Leal, Appellant v. Texas Department of Protective and Regulatory Services, Appellee

NO. 03-98-00516-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

July 27, 2000

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. 97-05599, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

[Copyrighted Material Omitted] Before Chief Justice ABOUSSIE, Justices B. A. SMITH and YEAKEL

MARILYN ABOUSSIE, Chief Justice.

Appellant Tina Leal appeals from a decree terminating her parent-child relationship with her four children and appointing appellee Texas Department of Protective and Regulatory Services (the Department) permanent managing conservator.¹ We will affirm the decree of termination.

BACKGROUND

Appellant married Eliazar Leal in 1981. They had four children: S.L.L., born October 24, 1990; E.R.L., born November 3, 1992; C.J.L., born July 5, 1994; and S.Z.L., born May 27, 1995. In May 1995, S.L.L. made an outcry statement to Ms. Leal that Mr. Leal had sexually abused her. Ms. Leal notified the authorities of S.L.L.'s allegations. Later that year, Mr. Leal was convicted of sexually assaulting S.L.L. and was sentenced to two life terms' imprisonment. He remained incarcerated at the time of trial in June 1998.

Between February of 1995 and September of 1997, the Department received thirteen referrals about appellant and her children. On August 8, 1997, the Leals' neighbor called 911 to report that the Leal children were unsupervised and playing in the street and that one of them had thrown glass at another child. Responding to the call, Austin Police Officer Lorenzo Cyphers arrived at the Leal residence and was allowed inside by the two older children. Cyphers testified that the house had a "strong, foul odor." He asked to see a parent, at which time S.L.L. told him that her mother was asleep. When S.L.L. was unable to wake Ms. Leal, Cyphers began calling her name and proceeded to the bedroom where Ms. Leal was sleeping. Ms. Leal eventually awoke and emerged from the bedroom. Cyphers called his supervisor, Sergeant John Neff, to the house. Neff testified that there was food on the walls, furniture, and floor; that flies, maggots, roaches, gnats, and other insects covered the floor and the spoiled food; and that the house reeked of urine and feces. He also stated that the children were dirty, that they were not wearing shoes, and that their clothing was filthy. Neff further testified that the odor in the house was so bad, he had to step outside several times to avoid vomiting.

At that time, the officers asked Ms. Leal about the state of her home. Ms. Leal replied that the filthy condition of the house resulted from her children's failure to clean up after themselves and was in no way her fault. The officers contacted Child Protective Services (CPS), at which time Ms. Leal and the four children retreated into the bedroom and blocked the door. Eventually, S.L.L. climbed through a bedroom window and reentered the house to go to the bathroom. The officers placed S.L.L. in a patrol car, whereupon Ms. Leal and the other three children came out of the bedroom. A CPS worker arrived a short while later and removed the children.

On August 11, 1997, the Department filed its petition seeking termination of the parent-child relationship between Ms. Leal and her four children. The Department alleged that Ms. Leal knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being; that she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being; and that termination was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (West Supp. 2000).

The Department returned the children to Ms. Leal on August 25, 1997, because she had made some progress in cleaning the home. But, on September 26, 1997, after Ms. Leal failed to maintain any improvement and had allowed the home to return to an unhealthy state, the Department again removed the children. The Department then pursued this termination action.

At the conclusion of the trial, the jury found that the parent-child relationship between Ms. Leal and her children should be terminated because: (1) termination was in the best interest of the children; and (2) she had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being or, alternatively, (3) she had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being. See id. The trial court rendered judgment on the verdict, from which Ms. Leal brings this appeal.

A court may terminate a parent-child relationship if it finds that: (1) the parent has engaged in any of the specific conduct enumerated in the Family Code as grounds for termination; and (2) termination is in the child's best interest. See id. § 161.001(1), (2); Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). In six points of error, Ms. Leal contends that the evidence is legally and factually insufficient to support the verdict. Thus, she argues, the judgment must be reversed.

DISCUSSION

Standard Of Review in Cases Requiring Proof by Clear and Convincing Evidence

The natural right existing between a parent and child is one of constitutional dimensions. See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). Therefore, the involuntary termination of parental rights interferes with fundamental constitutional rights. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); see also Stanley v. Illinois, 405 U.S. 645, 651 (1976) (characterizing parental rights as "essential" and "a basic civil right of man"). Involuntary termination proceedings must be strictly scrutinized in favor of preserving the relationship. See Holick, 685 S.W.2d at 20.

Most civil actions require that disputed issues of fact be resolved by a preponderance of the evidence. See Sanders v. Harder, 227 S.W.2d 206, 209 (Tex. 1950). In light of the grave nature of the proceedings and the constitutional rights implicated, the Texas Supreme Court adopted the "clear and convincing" standard of proof for the trial of actions seeking termination of parental rights. See G.M., 596 S.W.2d at 847. The legislature amended the Family Code to require that grounds justifying termination be proven by clear and convincing evidence. See Act of May 24, 1995, 74th Leg., R.S., ch. 709, § 1, 1996 Tex. Gen. Laws 3745 (codified at Tex. Fam. Code Ann. § 161.001, since amended). Clear and convincing evidence means the measure or 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 allegation sought to be established. See State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); Tex. Fam. Code Ann. § 101.007 (West 1996). Clear and convincing evidence is an intermediate standard of proof falling between the lesser burden of preponderance of the evidence and the greater standard of proof beyond a reasonable doubt required in criminal proceedings; it applies in only limited instances. See Ellis County State Bank v. Keever, 888 S.W.2d 790, 792 (Tex. 1994); G.M., 596 S.W.2d at 847; Addington, 588 S.W.2d at 570. The purpose of the standard of proof is to instruct the fact finder as to the degree of confidence it should have in its decision so as to assure correctness of the factual conclusion; to allocate risk between the parties; and to indicate the relative importance attached to the ultimate decision. See G.M., 596 S.W.2d at 847.

Although it is clearly established that the grounds for terminating a person's parental rights must be proven by clear and convincing evidence in the trial court, the correct standard of review an appellate court should apply in an appeal of the matter has been less certain. Some courts of appeals have held that the heightened burden of proof at the trial court requires an intermediate standard of review on appeal while others have held that the standard remains unchanged. Compare Spangler v. Texas Dep't of Protective & Regulatory Servs., 962 S.W.2d 253, 257 (Tex. App.--Waco 1998, no pet.); In re B.R., 950 S.W.2d 113, 117-19 (Tex. App.--El Paso 1997, no writ); Edwards v. Texas Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 135-37 (Tex. App.--El Paso 1997, no writ); In re H.C., 942 S.W.2d 661, 663-64 (Tex. App.--San Antonio 1997, no writ); Slatton v. Brazoria Co. Protective Servs. Unit, 804 S.W.2d 550, 556 (Tex. App.--Texarkana 1991, no writ); Williams v. Texas Dep't of Human Servs., 788 S.W.2d 922, 926 (Tex. App.--Houston [1st Dist.] 1990, no writ), overruled, In re J.N.R., 982 S.W.2d 137, 143 (Tex. App.--Houston [1st Dist.] 1998, no pet.); In re L.R.M., 763 S.W.2d 64, 66 (Tex. App.--Fort Worth 1989, no writ); Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex. App.--Dallas 1982, no writ) (applying intermediate standard of review), with J.N.R., 982 S.W.2d at 143; In re D.L.N., 958 S.W.2d 934, 940 (Tex. App.--Waco 1997, pet. denied); Spurlock v. Texas Dep't of Protective & Regulatory Servs., 904 S.W.2d 152, 155-56 (Tex. App.--Austin 1995, writ denied); In re J.J., 911 S.W.2d 437, 439-40 (Tex. App.--Texarkana 1995, writ denied); In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.--Amarillo 1995, no writ); Faram v. Gervitz-Faram 895 S.W.2d 839, 843 (Tex. App.--Fort Worth 1995, no writ); In re J.F., 888 S.W.2d 140, 141 (Tex. App.--Tyler 1994, no writ); In re A.D.E., 880 S.W.2d 241, 245 (Tex. App.--Corpus Christi 1994, no writ) (declining to apply intermediate standard); see also Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor L. Rev. 391 (1996). Currently, only...