W.S., In Interest of

• Decision Date: 18 May 1995
• Docket Number: No. 2-94-151-CV,2-94-151-CV
• Citation: W.S., In Interest of, 899 S.W.2d 772 (Tex. App. 1995)
• Parties: In the Interest of W.S., R.S., and A.S.
• Court: Texas Court of Appeals

Page 772

899 S.W.2d 772

In the Interest of W.S., R.S., and A.S.

No. 2-94-151-CV.

Court of Appeals of Texas Fort Worth.

May 18, 1995.

Barbara D. Nunneley, Rutledge & Nunneley, Hurst, for appellants.

Tim Curry, Crim. Dist. Atty., Betty Marshall and Charles M. Mallin, Asst. Chiefs of Appellate Section, Anne E. Swenson, Kimberly Brown, Asst. Crim. Dist. Attys., Fort Worth, for appellee.

David Flores, Fort Worth, guardian ad litem.

Before CAYCE, C.J., LIVINGSTON, J., and PATRICE M. BARRON, Former J., Sitting by Assignment.

OPINION

LIVINGSTON, Justice.

Following a suit affecting the parent-child relationship brought by the Texas Department of Protective and Regulatory Services("DPRS"), the court ordered termination of the parental rights of Bonnie and Dawayne Sharp to their four children, A.L., W.S., R.S., and A.S. Appellants challenge the termination of their parental rights in W.S., R.S., and A.S. ¹ arguing that: 1) there was no evidence or factually insufficient evidence to support a finding that appellants knowingly placed and allowed the children to remain in dangerous conditions; 2) there was no evidence or factually insufficient evidence to support a finding that appellants engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children; 3) the admission of the videotape of A.L.'s testimony was error because the tape was inherently leading in nature; and 4) the trial court improperly commented and gave weight to Dawayne Sharp's failure to take a plethysmograph test.We affirm because there was sufficient evidence to support the findings, the trial judge did not abuse his discretion by admitting the videotape, and the trial court's findings do not indicate that the court gave weight to Dawayne Sharp's failure to take a plethysmograph.

The facts that gave rise to this case began on the evening of September 5, 1991, when Bonnie Sharp was awakened and discovered that her eight-year-old daughter, A.L., and her husband, Dawayne, were awake.A.L. was pulling up her panties, and Dawayne explained that he was watching A.L. masturbate.Later that same evening, Bonnie left A.L. and her other three children with Dawayne and went out to get some food.When Bonnie returned, she saw Dawayne getting on top of A.L. to have sex with her.Several of the other children were in the same room at the time.Bonnie called the police, and A.L. was taken to the hospital for a sexual assault examination.The results of the examination supported a finding of sexual abuse.At the time of trial, Dawayne and Bonnie were still living together as husband and wife.

The trial court found that Dawayne sexually abused A.L. on more than one occasion, Bonnie was aware of the abuse and continued to place her daughter with Dawayne, and all of the children showed signs of sexual abuse.The trial court concluded that both Bonnie and Dawayne:

Knowingly placed and knowingly allowed the children to remain in conditions and surroundings which endangered the physical and emotional well-being of the children; and

Engaged in conduct and knowingly placed the children with persons who engaged in conduct which endangered the physical and emotional well-being of the children.

Appellants' rights were terminated as to W.S., R.S., and A.S.

EVIDENTIARY REVIEW

In points of error one and two, appellants argue there is no evidence or factually insufficient evidence to support the trial court's findings of fact that appellants endangered the well-being of their children.²The Texas Family Code allows for involuntary termination of parental rights where the court finds a parent has:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; [and]

....

(2) termination is in the best interest of the child.

TEX.FAM.CODE ANN. § 15.02(a)(1)(D), (a)(1)(E), (a)(2)(Vernon Supp.1995).

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury's answers to jury questions.Anderson v. City of Seven Points, 806 S.W.2d 791, 794(Tex.1991).The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question.Arena v. Arena, 822 S.W.2d 645, 650(Tex.App.--Fort Worth 1991, no writ);Raposa v. Johnson, 693 S.W.2d 43, 45(Tex.App.--Fort Worth1985, writ ref'd n.r.e.).

Standard of Review

In determining a "no evidence" point, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary.T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221(Tex.1992);Orozco v. Sander, 824 S.W.2d 555, 556(Tex.1992);In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62(1951).A "no evidence" point of error may only be sustained when the record discloses one of the following: 1) a complete absence of evidence of a vital fact; 2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; 3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or 4) the evidence establishes conclusively the opposite of a vital fact.Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9(Tex.1990).

Proceedings to terminate parental rights under section 15.02 of the Texas Family Code require proof by clear and convincing evidence.SeeSantosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599, 603(1982);Richardson v. Green, 677 S.W.2d 497, 499(Tex.1984);Swinney v. Mosher, 830 S.W.2d 187, 195(Tex.App.--Fort Worth1992, writ denied).This higher burden of proof at the trial court does not, however, alter the appellate standard of review for factual sufficiency.SeeFaram v. Gervitz-Faram, 895 S.W.2d 839, 843(Tex.App.--Fort Worth 1995, n.w.h.)(rejecting the "intermediate standard of appellate review" in cases involving the clear and convincing burden of proof);D.O. v. Texas Dep't of Human Serv., 851 S.W.2d 351, 353(Tex.App.--Austin 1993, no writ).

Therefore, to prevail on an assertion that the evidence supporting termination of parental rights is "factually insufficient," the evidence supporting the finding must be so weak or the evidence to the contrary must be so overwhelming that the answer should be set aside and a new trial ordered.Garza v. Alviar, 395 S.W.2d 821, 823(Tex.1965).We are required to consider all of the evidence in the case in making this determination.Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29(Tex.1993).

Section 15.02(a)(1)(D)

We will first review findings of fact 9 and 10 which found appellants knowingly placed or knowingly allowed their children to remain in conditions or surroundings which endangered their physical or emotional well-being.

In Stuart v. Tarrant County Child Welfare Unit, 677 S.W.2d 273(Tex.App.--Fort Worth1984, writ ref'd n.r.e.), this court construed termination under section 15.02(a)(1)(D) to require evidence of a physical environment that endangered the physical or emotional well-being of the child.Id. at 280.This court concluded that surroundings or environment referred to the acceptability of living conditions and did not include the conduct of a parent in the home toward the child.Id.

A number of other appellate courts have, however, rejected this interpretation and have held that there is no reason to impose such a restriction on the plain meaning of section 15.02(a)(1)(D).SeeD.O., 851 S.W.2d at 354-55;In re B.R., 822 S.W.2d 103, 105-06(Tex.App.--Tyler1991, writ denied);Smith v. Sims, 801 S.W.2d 247, 251(Tex.App.--Houston[14th Dist.]1990, no writ);In re L.S., 748 S.W.2d 571, 575(Tex.App.--Amarillo 1988, no writ).These courts have concluded that the conduct of a parent in the home can produce an "environment" that endangers the physical and emotional well-being of a child as required for termination under section 15.02(a)(1)(D).SeeD.O., 851 S.W.2d at 354-55;In re B.R., 822 S.W.2d at 105-06.The Tyler court explained:

It is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons who live in the home of a child, or with whom the child is compelled to associate on a regular basis in his home, are not inherently a part of the "conditions and surroundings" of that place or home under section 15.02(1)(D).

In re B.R., 822 S.W.2d at 106.

We conclude that our prior interpretation in Stuart was incorrect and adopt the interpretation stated by the Tyler court in In re B.R.Accordingly, we will look at the evidence regarding the physical environment as well as the environment produced by the conduct of Bonnie and Dawayne in reviewing the trial court's findings of fact 9 and 10.

At trial, the evidence of the children's living conditions indicated that Bonnie and Dawayne had the two girls sleep in their bedroom, either in the bed with them or on the floor.Bonnie and Dawayne would have sexual intercourse and perform other sexual acts on each other while the girls were in the room.The boys slept on a pallet in their grandfather's room.In addition, when the children were taken into foster care, they smelled, their hair was dirty and mussed, and their clothing was mismatched.

Sexual assault examinations of all four children revealed evidence that each of the children had been sexually abused.Further, all of the children had behavioral and emotional problems, including sexual acting-out behaviors.

At trial, Bonnie claimed that she never left Dawayne alone with the children after she found him sexually abusing...