Vasquez v. Texas Dprs

• Decision Date: 30 December 2005
• Docket Number: No. 01-04-00751-CV.,01-04-00751-CV.
• Citation: 190 S.W.3d 189
• Parties: Michelle Lynn VASQUEZ, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE & REGULATORY SERVICES, Appellee.
• Court: Texas Court of Appeals

190 S.W.3d 189

Michelle Lynn VASQUEZ, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE & REGULATORY SERVICES, Appellee.

No. 01-04-00751-CV.

Court of Appeals of Texas, Houston (1st Dist.).

December 30, 2005.

COPYRIGHT MATERIAL OMITTED

William B. Connolly, William B. Connolly & Associates, Houston, TX, for Appellant.

Sandra D. Hachem, Sr. Asst. Co. Atty., Houston, TX, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

OPINION

TIM TAFT, Justice.

Appellant, Michelle Lynn Vasquez, appeals the trial court's judgment terminating the parent-child relationship between her and her child, Z.M. We determine whether the evidence at trial was legally and factually sufficient to support the termination order's finding that appellant endangered Z.M. and that the termination of appellant's parental rights was in the best interest of Z.M. See TEX. FAM.CODE ANN. § 161.001(1)(E), (2) (Vernon Supp.2005). We affirm.

Facts

Appellant is the mother of four children: M.F.M., M.R.M., M.D.V., and Z.M. Appellant has a long history with the Texas Department of Protective and Regulatory Services ("TDPRS").¹ That history began in June of 2001, six months before M.D.V. was born with marijuana in her system, when TDPRS received a report that M.F.M. and M.R.M. had been exposed to drugs and left unsupervised while appellant slept and that M.F.M. had drunk lighter fluid. Between this time and April 1, 2002, TDPRS alleged four instances of neglectful or abusive conduct on the part of appellant with regard to her children. In April 2002, a petition was filed against appellant on behalf of her three children as a result of continued drug use and several incidents of negligent supervision. This included an occasion on which M.R.M. wandered from home onto a sidewalk of a busy street and was brought to a nearby mall by persons who found M.R.M. and thought M.R.M. was missing and in danger. TDPRS took emergency custody of the children. In response to the petition in April, appellant signed a family service plan on June 5, 2002, in which she agreed to participate in parenting classes, to submit to random urinalysis testing, and to obtain and to maintain appropriate housing and stable employment. Appellant agreed to temporary orders giving custody of her children to TDPRS. Even though appellant completed the parenting classes and counseling, she continued to use marijuana and prescription drugs for recreational use.

After Z.M. was born, on July 9, 2003, appellant took a drug and alcohol assessment and was admitted for in-patient treatment. Carrie Coleman, an in-home family-based case worker, was assigned to assist appellant upon her referral to Family-Based Safety Services with the goal of returning appellant's other three children to her. Coleman met appellant for the first time on September 12, 2003, after numerous unsuccessful attempts to get together with appellant. Appellant was uncooperative with some of Coleman's recommendations, including some of those concerning child-proofing her residence. Sometime in September 2003, appellant's children were returned to her home. In October, appellant missed five appointments with Coleman. On one appointment when Coleman went to appellant's residence, Coleman observed M.D.V. opening the door to the outside by herself. On another appointment, Coleman observed appellant on the phone in the dining room while Z.M. was left untended in an infant seat next to a bathtub filled with water in which another child was bathing. During several appointments, Coleman was of the opinion that appellant was high. In November 2003, appellant missed three appointments. In December, appellant missed two more appointments with Coleman. During this time Turning Point Counseling Services made numerous attempts to call appellant to schedule a random urinalysis test. For example, Turning Point left three messages before appellant appeared on November 14, 2003. On that date, appellant tested positive for marijuana. Turning Point left four messages before appellant appeared for another test in December 2003, which appellant passed. On January 15, 2004, Z.M. was taken into possession by TDPRS.

Sufficiency of the Evidence

In her first issue presented for review, appellant contends that the evidence was legally and factually insufficient to terminate parental rights to her child, Z.M. Specifically, appellant contends that the evidence was legally and factually insufficient to prove by clear and convincing evidence that appellant engaged in conduct that endangered the physical or emotional well-being of Z.M. under section 161.001(1)(E) of the Texas Family Code. In her second issue presented for review, appellant contends that the evidence was legally and factually insufficient to prove by clear and convincing evidence that termination of appellant's parental rights was in the best interest of Z.M.

A. Standards of Review

In termination-of-parental-rights cases, "Due Process requires that [TDPRS] support its allegations [of termination] by at least clear and convincing evidence" in order to reduce the risk of erroneous termination. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982); In re B.L.D. & B.R.D., 113 S.W.3d 340, 353-54 (Tex.2003). "Clear and convincing evidence" is defined as that 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 allegations sought to be established. TEX. FAM.CODE ANN. § 101.007 (Vernon 2002).

1. Legal Sufficiency

When an appellant attacks the legal sufficiency of an adverse judgment on an issue for which she did not have the burden of proof, that appellant must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In parental-rights-termination cases, the standard of review for legal sufficiency is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which TDPRS bears the burden of proof. In re J.F.C, 96 S.W.3d 256, 266 (Tex.2002). In reviewing a no-evidence challenge, we consider the evidence in a light most favorable to the verdict, assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could have done so, and disregard all contrary evidence that a reasonable fact finder could have disbelieved or found to be incredible. Id.; In re Guardianship of Hinrichsen, 99 S.W.3d 773, 781 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

2. Factual Sufficiency

When an appellant attacks the factual sufficiency of an adverse finding on an issue on which the opposing party had the burden of proof, that appellant must demonstrate that there is insufficient evidence to support the adverse finding. Croucher, 660 S.W.2d at 58. In analyzing factual sufficiency, we consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 265. A factual-sufficiency challenge will be overruled if, considering all of the evidence in the record—both that which supports and that which contradicts the trial court's finding—the fact finder reasonably could form a firm conviction or belief that the parent committed one of the alleged grounds of termination and that the termination of parental rights is in the best interest of the child. In re C.H., 89 S.W.3d 17, 28-29 (Tex.2002).

B. Findings Subject to Challenge

A court may base a termination of parental rights upon a finding that a parent engaged in conduct described in any subsection of Family Code section 161.001(1), plus a finding that the termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(1), (2); In re L.M., 104 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The trial court's termination order contains findings by the trial court that termination was in Z.M.'s best interest and that appellant had engaged in conduct or knowingly placed Z.M. with persons who engaged in conduct that endangered the physical or emotional well-being of Z.M. These findings satisfy the requirements of section 161.001(1)(E) and (2) and also conform to the oral findings made by the trial court at the conclusion of the termination hearing.

TDPRS contends that the trial court's judgment may be upheld upon proof supporting any subsection of 161.001 that was pleaded, even though some of those pleaded subsections were not found by the trial court. In particular, TDPRS argues that this Court must affirm the trial court's judgment on the basis of subsection 161.001(1)(D), which was also pleaded and is supported by evidence, but which ground for termination appellant has not challenged on appeal. TDPRS's argument would have had merit if the trial court had found both subsections (D) and (E) in its termination order. See Edwards v. Dep't of Protective Servs., 946 S.W.2d 130, 135 (Tex.App.-El Paso 1997, no writ). Its argument would also have had merit if a jury had returned a broad-form verdict in a case in which several grounds for termination, including subsection (D), had been alleged. See In re C.H., 25 S.W.3d 38, 48 (Tex.App.-El Paso 2000), rev'd on other grounds, 89 S.W.3d 17 (Tex.2002). TDPRS appears to confuse the general rule in civil cases that findings should not be made in the judgment with the requirement that the findings in section 161.001 of the Texas Family Code be made in a parental-rights-termination order. See In re A.I.G., 135 S.W.3d 687, 694 (Tex.App.-San Antonio 2003, no pet.). If the trial court's findings could be disregarded, the general order of termination would be similar to a general verdict in a trial to the court that could be upheld upon sufficient evidence of any ground pleaded. We hold, however, that a parental-rights-termination order can be upheld only on grounds both pleaded by TDPRS and found by ...