Matter of WAB

• Decision Date: 29 October 1998
• Docket Number: No. 14-97-00871-CV.,14-97-00871-CV.
• Citation: 979 S.W.2d 804
• Parties: In the Matter of W.A.B.
• Court: Texas Court of Appeals

979 S.W.2d 804

In the Matter of W.A.B.

No. 14-97-00871-CV.

Court of Appeals of Texas, Houston (14th Dist.).

October 29, 1998.

William B. Connolly, Jo Nelson, Houston, for appellants.

Patricia Lee Flenniken, Lisa S. Rice, Moira Rankin, Houston, for appellee.

Before CANNON, DRAUGHN and HILL, JJ.^*

OPINION

JOE L. DRAUGHN, Justice (Assigned).

This is an action to terminate the parentchild relationship between the mother, Rebecca Delvecceo, and her minor child, W.A.B. When W.A.B was born, both he and his mother tested positive for cocaine. Since his birth, his mother tested positive for cocaine twice, was convicted of drug possession and prostitution, and, at the time of trial, was serving a one-year sentence for possession of drug paraphernalia. The lower court found by clear and convincing evidence that the termination of the parent-child relationship was in the best interest of the child, and further found that the mother engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child.¹

On appeal, Delvecceo asserts the trial court erred when it terminated the parentchild relationship because: (1) the termination order did not require the showing of any causal connection between Delvecceo's behavior and any actual endangerment to her child; and (2) the evidence was both factually and legally insufficient. We overrule both points of error and affirm the judgment of the trial court.

STATEMENT OF FACTS

W.A.B. was born June 28, 1994. At birth, he tested positive for cocaine, as did his mother who admitted ingesting cocaine while pregnant. The hospital notified the Texas Department of Protective and Regulatory Services ("TDPRS") which was granted, after petitioning the court, temporary managing conservatorship with Delvecceo as possessory conservator. Delvecceo was also ordered to reside with W.A.B. at The Shoulder, an in-patient drug rehabilitation facility. Delvecceo left the treatment facility on July 30, 1994 without notifying the court or TDPRS. Delvecceo pled guilty to prostitution on August 25, 1994 and was sentenced to forty-five days incarceration. TDPRS took custody of W.A.B. and, at the time of trial, the child resided with his aunt and uncle. TDPRS filed this suit after repeated attempts to reunite the mother with W.A.B. were unsuccessful.

SUFFICIENCY OF THE EVIDENCE

In the interest of efficiency, we will begin our analysis with Delvecceo's second and third points of error. In her second and third points of error, Delvecceo challenges the legal and factual sufficiency of the evidence. Evidence supporting the finding that parental rights should be terminated must be clear and convincing. See In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980). The clear and convincing standard is an intermediate standard of proof, falling somewhere between the preponderance standard used in ordinary civil proceedings and the reasonable doubt standard used in criminal proceedings. See id. This standard is defined as "that measure or degree of proof which 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 established." State v. Addington, 588 S.W.2d 569, 570 (Tex.1979) (per curiam).

When both legal and factual insufficiency challenges are raised on appeal, we must first examine the legal sufficiency of the evidence. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam). In reviewing a challenge to the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the trial court's findings and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). In reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). "The clear and convincing standard of proof required to terminate parental rights does not alter the appropriate standard for appellate review." D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 353 (Tex.App.—Austin 1993, no writ).

A mother's use of drugs during the pregnancy is conduct which endangers the physical and emotional well-being of the child. See Dupree v. Texas Dep't of Protective and Regulatory Servs., 907 S.W.2d 81, 84 (Tex.App.—Dallas 1995, no writ). At trial, Delvecceo admitted to being a drug addict, ingesting cocaine during her pregnancy, and twice testing positive for cocaine after the birth of her son. Therefore, evidence of Delvecceo's drug use during and after pregnancy may be conduct which endangers the physical or emotional well-being of W.A.B. and also constitutes grounds for termination. See id.; see also In the Interest of Guillory, 618 S.W.2d 948, 950-51 (Tex.App.—Houston 1st Dist. 1981, no writ) (evidence that mother who birthed child while on probation for heroin possession, continued to use drugs after birth, and subsequently convicted and imprisoned for aggravated robbery sufficient to support finding that mother's conduct endangered child).

Further, Devecceo also admitted to being arrested and imprisoned before and after the birth of her son for possession of drugs, prostitution, possession of drug paraphernalia, and various other offenses. While mere imprisonment will not, standing alone, constitute conduct endangering the physical or emotional well-being of the child, it may contribute to a finding that the parent engaged in a course of conduct which endangered a child's physical or emotional wellbeing. See Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533-534 (Tex.1987). Therefore, evidence of Delvecceo's frequent arrests and incarceration may also constitute grounds for termination. See id.; see also In the Interest of E.S.M., 550 S.W.2d 749 (Tex. App.—Houston 1st Dist. 1977, writ ref'd n.r.e.) (evidence of mother's drug abuse, prostitution, and frequent incarceration sufficient to support finding that mother's conduct endangered child). Although Delvecceo testified to her current successful drug rehabilitation program, this program is a prisonsponsored program and there are no assurances, nor can there be, that once Delvecceo is released she will be a sober and responsible mother to her child.

The record demonstrates Delvecceo engaged in a course of conduct that endangered the physical and emotional well being of her child. See Harris v. Herbers, 838 S.W.2d 938, 942 (Tex.App.—Houston 1st Dist. 1992, no writ). Her criminal history, imprisonment, and illegal drug use during and after her pregnancy constitute a basis for termination of her parental rights under the Family Code. See TEX. FAM.CODE ANN. § 161.001(1)(E) (Vernon Supp.1998). Thus the trial court's finding that Delvecceo's conduct constituted grounds for termination of her parental rights is supported by the evidence.² Moreover, after weighing the evidence found in the record before us, we conclude the trial court's finding is not so contrary to the overwhelming weight of the evidence as to be manifestly wrong or unjust.³

Accordingly, we overrule appellant's second and third points of error.

CAUSAL CONNECTION

In Delvecceo's first point of error, she challenges the trial court's judgment on the basis that the termination was not supported by a causal connection between Delvecceo's behavior and any actual endangerment or harm to W.A.B. Delvecceo's argument rests on two assumptions. First, Delvecceo assumes the child was not harmed by her ingestion of cocaine during, and after her pregnancy; therefore, that behavior should not serve as the basis for the termination of her parental rights. Second, Delvecceo assumes that Texas courts' interpretation of section 161.001(1)(E) to not require actual damage to the child resulting from the parent's conduct is unconstitutional.

We are not required to speculate as to the harm suffered by a fetus when its mother ingests cocaine during her pregnancy. The Texas Supreme Court has interpreted "endanger" to mean "to expose to loss or injury; to jeopardize." See Boyd, 727 S.W.2d at 533. Although, endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or cause actual physical injury to the child before it constitutes a danger to the child's well-being. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Finally, the use of drugs during the pregnancy may be conduct which endangers the physical and emotional well-being of the child. See Dupree, 907 S.W.2d at 84.

Further, the record demonstrates the trial court based its decision not only on Delvecceo's ingestion of drugs during her pregnancy, but also on her conduct after the birth of W.A.B. Janet Banks, the clinical coordinator at the LBJ Hospital nursery, stated "drug abusing mothers have been known to neglect their children in pursuit of their drug habit. This infant is at risk for neglect, abuse, developmental delays and poor weight gain besides sic lack of attention and appropriate maternal-infant bonding." Delvecceo's conduct supported that assessment when she tested positive for cocaine twice after the birth of W.A.B., and within one month after she left The Shoulder with her child, in violation of a court order, she was arrested and convicted for prostitution and sentenced to 45 days incarceration. The record does not disclose where W.A.B. was on August 18, 1994 when his mother was arrested for prostitution and subsequently incarcerated. At the very least, Delvecceo exposed her child to the risk of neglect, if not actual neglect, through her criminal conduct and incarceration. Therefore, we disagree with Delvecceo's first assumption and affirm the trial court's finding...