Smith v. Dept. of Protective & Reg. Serv.

• Decision Date: 10 March 2005
• Docket Number: No. 03-04-00259-CV.,03-04-00259-CV.
• Citation: 160 S.W.3d 673
• Parties: Whitney Georgeann SMITH, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
• Court: Texas Supreme Court

160 S.W.3d 673

Whitney Georgeann SMITH, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.

No. 03-04-00259-CV.

Court of Appeals of Texas, Austin.

March 10, 2005.

COPYRIGHT MATERIAL OMITTED

Rosemary Colosky, San Angelo, for Appellant.

Lana Shadwick, Texas Department of Family & Protective Services, Office of General Counsel, Houston, John E. Merli, San Angelo, for Appellee.

Sarah Regina Guidry, TDPRS Supervising Attorney, Field Operations Special Litigation, Houston, Ellen Griffith, Midland, for TDPRS.

Gonzalo P. Rios, Jr., San Angelo, for Ad Litem/KNS.

Paul D. Stipandvic, Gossett, Harrison, Reese, Wilson & Millican, John W. Caldwell, Jr., San Angelo, for Ad Litem/Appellant.

Jimmy Stewart, Law Office of Jimmy Stewart, San Angelo, for Ad Litem/Father.

Theodore A. Hargrove, III, San Angelo, for Ad Litem/Inter.

Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.

OPINION

BEA ANN SMITH, Justice.

Appellant Whitney Georgeann Smith appeals from the trial court's order finding that termination of her parental rights was in the best interest of her child, K.N.S. Smith challenges the legal and factual sufficiency of the evidence supporting the trial court's finding. We hold that the evidence is sufficient to support termination and affirm the trial court's decision.

BACKGROUND

Smith is the natural mother of K.N.S., who was born in January 2002, when Smith was 15 years old. Shortly after K.N.S.'s birth, the Texas Department of Protective and Regulatory Services (Department) received a referral alleging that Smith had used drugs during her pregnancy. An investigator interviewed Smith, who admitted using marihuana before she knew she was pregnant. The Department closed the case after ruling out any misconduct.

In March 2002, the Department received two separate referrals alleging that Smith was screaming angrily at K.N.S. The investigator ruled out physical abuse or non-supervision by Smith but determined that her behavior created a considerable risk to K.N.S. As a result, the Department referred Smith to a provider for counseling and parent training. The provider closed Smith's case approximately five months later because Smith was uncooperative. At that point, the Department transferred Smith's case to the Department's Family Based Safety Services unit.

During this time, Smith was on juvenile probation and under a court order to remain in her father's home. She and K.N.S. lived in the home with her father and his girlfriend. Her involvement with the Juvenile Probation Department began when she was twelve years old. Her juvenile record includes five referrals for assaults with bodily injury between October 1998 and June 2003, as well as at least nine referrals for running away from home.

In September 2002, when Smith was three months pregnant with her second child, the Department received a referral stating that Smith had run away from her father's home. She left K.N.S. in the home and provided no information as to her whereabouts or when she would return. The referral also alleged that Smith's father had beaten her, leaving marks on her back and shoulders. The Department learned that on previous occasions Smith ran away from her father's home with K.N.S. and stayed with friends or her grandmother.

While Smith was still on runaway status, the Department obtained temporary managing conservatorship of K.N.S. and placed her with a foster family. The Juvenile Probation Department then took custody of Smith and placed her in Smithlawn Maternity Home (Smithlawn) in Lubbock, where she was ordered to stay until the birth of her second child. During her stay at Smithlawn, Smith participated in counseling and a parenting class, and received a psychological evaluation.

Smith and her newborn son were released from Smithlawn in March 2003, and they returned to live with her father. K.N.S. remained in foster care, and Smith attended a weekly, hour-long visitation period with K.N.S. Smith remained under a court order to attend anger management and parenting classes, participate in individual counseling, and complete all other services offered to her by the Department. The Department's Family Service Plan (Service Plan) indicated that in addition to the court-ordered services, Smith was to complete a psychological evaluation and a drug and alcohol assessment.

Less than a month after returning to her father's home, Smith called the police because she and her mother had a physical fight outside the father's home. During the fight, the mother spat in Smith's face and beat her in the head with a purse. The following month, Smith again called police to her father's home because she witnessed her father's girlfriend allegedly threaten him with a knife during an argument.¹

A third incident occurred in June 2003, when the police responded to a domestic disturbance call at the father's home. Smith told the police that she had a fight with her father during which he struck her and pulled her hair when she attempted to leave the house. In the course of the fight, Smith brandished a knife at her father. The police officer on the scene observed a bruise on Smith's inner right arm, red marks on her back, and a scratch on her neck. Her father had a scratch and a bruise on his right wrist. After interviewing Smith and her father, the officer arrested Smith for assault causing bodily injury. Following the fight, the Department removed Smith's son from her custody, and the Juvenile Probation Department placed Smith in a juvenile facility. Smith ran away from the facility eight days later and remained on the run for more than four months, after which she returned to her father's home.

Smith was arrested again in November 2003 for outstanding warrants. The arresting officer asked Smith about an investigation in which she was suspected of forging a check. During the interview, Smith admitted that she and a friend stole a purse from which she forged a check, which she used at a restaurant. She also stated that her friend forged another check to pay for both of them to get their nails done. The officer released Smith but instructed her that he would inform her if a warrant issued for her arrest and give her time to turn herself in to authorities. When the officer informed her that he had the warrant, Smith ran away. Ultimately, Smith was arrested and incarcerated in the county jail for approximately two weeks.

During the months after Smith left Smithlawn, she did not fully comply with her Service Plan requirements. In April 2003, the Department arranged for a parent training specialist, Janel Monoghan, to go to Smith's home to conduct parent training. When Monoghan first called Smith to schedule an appointment, Smith indicated that she did not need parent training and refused to schedule an appointment. Monoghan called Smith once more, and Smith again indicated that she did not need her services but agreed to an appointment for the following day. When Monoghan arrived at Smith's home for the appointment, Smith was not there. It was not until Monoghan made an unannounced visit to Smith's home a week later that Monoghan was able to talk with Smith and schedule an appointment for an assessment. Smith completed the parenting assessment, achieving an average score. Shortly thereafter, Smith ran away from her placement in the juvenile facility, and Monoghan was unable to contact her.

The Department asked Monoghan to reinstate the parenting classes in February of the following year. Appointments were scheduled during Smith's visitation period with her children, but she missed three appointments because she was either running from authorities or in jail. Smith also failed to complete a drug and alcohol assessment as required by her Service Plan and failed to complete her counseling requirements after she left Smithlawn.

After she was removed from Smith's custody, K.N.S. has remained with one foster family, the Harpers. Department evaluations and trial testimony indicate that K.N.S. is a healthy, happy child who is developing normally for her age. She has established a strong bond with the Harpers, who want to adopt her. During visitations between K.N.S. and Smith, K.N.S. was hesitant to go into the visitation room alone with Smith, and Mrs. Harper reassured K.N.S. by accompanying her into the room until she felt comfortable. Smith and the Department caseworker both testified that Smith only missed visitations with K.N.S. when she was running from law enforcement or in jail.

Following a bench trial, the court found that the Department proved by clear and convincing evidence that Smith failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of K.N.S. and that termination of the parent-child relationship was in the best interest of K.N.S. This appeal followed.

STANDARD OF REVIEW

To terminate the parent-child relationship, the Department must satisfy a two-prong test. The Department must prove by clear and convincing evidence (1) that the parent committed an act or omission set forth as statutory grounds for termination² and (2) that termination of the parent-child relationship is in the best interest of the child. See Tex. Fam.Code Ann. § 161.001 (West 2002). The Department must prove both prongs of the test. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976).

Clear and convincing evidence is the measure or degree of proof that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re C.H., 89 S.W.3d 17, 23 (Tex.2002) (citing State v. Addington, 588 S.W.2d 569, 570 (Tex.1979)). This heightened standard of proof is appropriate because termination is a drastic remedy of such weight and gravity that due process requires the state to justify termination of the parent-child relationship by more substantial proof than a preponderance of the evidence. Id. (...