Spangler v. Texas Dept. of Protective and Regulatory Services

• Decision Date: 04 February 1998
• Docket Number: No. 10-97-210-CV,10-97-210-CV
• Citation: 962 S.W.2d 253
• Parties: Thomas Edward SPANGLER, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
• Court: Texas Court of Appeals

Page 253

962 S.W.2d 253

Thomas Edward SPANGLER, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.

No. 10-97-210-CV.

Court of Appeals of Texas Waco.

Feb. 4, 1998.

Gell R. Kingery, Waco, for appellant.

James Robert Angel, Asst. Atty. Gen., Amy Forrester, Asst. Dist. Atty., Stanley Rentz, Atty. Ad Litem, Waco, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

Appellee, the Texas Department of Protective and Regulatory Services ("DPRS"), filed suit to terminate the parental rights of appellant, Thomas Edward Spangler, with respect to his two daughters. As grounds for termination, DPRS alleges that Spangler: (1) knowingly placed or knowingly allowed his children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed his children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (3) failed to support the children in accordance with his ability during a period of one year; and (4) that termination of the parent-child relationship would be in the best interest of the children. TEX. FAM.CODE ANN. § 161.001 (Vernon 1996). The jury found that Spangler engaged in the conduct alleged and that termination was in the best interest of the children. The trial court signed a decree terminating parental rights. Spangler brings this appeal asserting in one point of error that the trial court erred in rendering judgment because the jury's findings of fact were not supported by factually sufficient evidence. We will affirm the judgment.

FACTUAL BACKGROUND

Spangler is the father of two girls, seven year old M.R.S. and five year old R.D.S. In 1994, a grand jury indicted Spangler for sexually assaulting a child. On June 25, 1995, officers with the Bellmead Police Department arrested Spangler for driving while intoxicated while his daughters were in the vehicle. In 1996, Spangler was incarcerated for six counts of felony retaliation against DPRS employees. On March 24, 1997, this case was submitted to a jury and the trial court terminated the parent-child relationship between the children and Spangler as well as with their biological mother.

POINT OF ERROR

Spangler's sole point of error alleges that the evidence is factually insufficient to support the jury's finding that he engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. Spangler also asserts that the evidence is factually insufficient to support the jury's finding that he failed to support the children during the one year period preceding the filing of the termination petition.

TERMINATION OF PARENTAL RIGHTS

The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The termination of parental rights involves fundamental constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972). A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit. Holick, 685 S.W.2d at 20.

In proceedings to terminate the parent-child relationship brought under Section 161.001 of the Family Code, the petitioner must establish one or more acts or omissions enumerated under subsection (1) of the statute and must additionally prove, that termination of the parent-child relationship is in the best interest of the child. Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984). Both elements must be established, and proof of one element does not relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976).

CLEAR AND CONVINCING EVIDENCE

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by "clear and convincing evidence." In re G.M., 596 S.W.2d 846, 847 (Tex.1980). 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 or the allegations sought to be established." Id. Although the clear and convincing standard of proof required at the trial level is well settled, the standard of appellate review to be applied by this court is not as well defined. In re L.R.M., 763 S.W.2d 64, 65 (Tex.App.--Fort Worth 1989, no writ).

Texas law requires this court to determine if the trial court adhered to the clear and convincing standard of proof. Baxter v. Texas Dep't of Human Resources, 678 S.W.2d 265, 267 (Tex.App.--Austin 1984, no writ). The Texas Supreme Court has held that termination proceedings should be "strictly scrutinized." Holick, 685 S.W.2d at 20; G.M., 596 S.W.2d at 846. "In reviewing the factual sufficiency of the record in a termination suit, [the court of appeals] must consider all of the evidence as required by In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), while applying the 'clear and convincing evidence' standard of proof." G.M. v. Texas Dep't of Human Resources, 717 S.W.2d 185, 187 (Tex.App.--Austin 1986, no writ).

However, it is imprecise to say that the court of appeals should apply the clear and convincing standard of proof because the standard of proof must, by definition, be applied in the trial court. L.R.M., 763 S.W.2d at 66. The Dallas Court of Appeals recognized this distinction in Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex.App.--Dallas 1982, no writ) (citing Beeler v. American Trust Co., 24 Cal.2d 1, 147 P.2d 583, 600 (1944)) (Traynor, J., dissenting); Bryant M. Bennett, Comment, Evidence: Clear and Convincing Proof: Appellate Review, 32 CAL. L.REV. 74, 78 (1944). In Neiswander, the court held:

[I]t is the duty of the appellate court in reviewing the evidence to determine, not whether the trier could reasonably conclude that the existence of a fact is more probable than not, as in ordinary civil cases, but whether the trier of fact could reasonably conclude that the existence of a fact is highly probable.

Neiswander, 645 S.W.2d at 835-36. This standard of appellate review recognizes that the trier of fact judges the credibility of witnesses. Wayland v. City of Arlington, 711 S.W.2d 232, 233 (Tex.1986). However, using the term "highly probable" is an unnecessary complication because, in this context, "highly probable" is merely a synonym for "clear and convincing." L.R.M., 763 S.W.2d at 66.

Therefore, the rule adopted by this court is stated as follows: When the trier of fact is required to make a finding by clear and convincing evidence, the court of appeals will only sustain a point of error alleging insufficient evidence if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence. See L.R.M., 763 S.W.2d at 66-67. We do not believe that the Texas Supreme Court intends to require trial courts to adhere to a higher standard of proof in termination cases while allowing the courts of appeals to use the same standard of review as in cases decided by a preponderance of the evidence. Id.

Therefore, just as the clear and convincing standard of proof is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings, this standard of appellate review is an intermediate standard. Neiswander, 645 S.W.2d at 835; See also Justice Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 BAYLOR L.REV. 391 (1996). This intermediate standard of review is necessary to protect the fundamental constitutional rights involved by termination of parental rights. Compare G.M., 596 S.W.2d at 846.

Our holding can be reconciled with earlier cases in which the Texas Supreme Court refused to apply a clear and convincing standard. Meadows v. Green, 524 S.W.2d 509, 510 (Tex.1975) (per curiam), and cases cited therein. In Meadows, the court stated:

In reaching its decision the Court of Civil Appeals has sought to apply a third standard of reviewing the evidence presented at trial-the "clear and convincing" standard. In Texas there are but two standards by which evidence is reviewed: factual sufficiency and legal sufficiency. The requirement of clear convincing evidence is merely another method of stating that a cause of action must be supported by factually sufficient evidence.

Id.

This court must still determine whether the evidence at trial was factually sufficient to support a finding of clear and convincing evidence. See Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984) (in a criminal appeal, appellate court must determine if a rational trier of fact could have found elements of crime beyond reasonable doubt).

Other principles of law relating to sufficiency of evidence are still applicable even when an intermediate standard of review is used. L.R.M., 763 S.W.2d at 67. In preponderance cases, insufficient evidence points should be sustained when: (1) the evidence is factually insufficient to support a finding by the preponderance of the evidence; or (2) a finding is contrary to the great weight and preponderance of the evidence. Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 366 (1960). Likewise in a clear and convincing case, an insufficient evidence point may be sustained when: (1) the evidence is factually insufficient to support a finding by clear and convincing evidence; or (2) a finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing. L.R.M., 763...