In the Interest of J.V. and D.V., Children v. << (2015)

MEMORANDUM OPINION 1

In four issues, Appellant J.V.S. (Father) appeals from the trial court's judgment terminating his parental rights to his two children, J.V. (Jacob) and D.V. (Daisy).²  We affirm.

I. Background

Jacob was born in December 2007, and Daisy was born in December 2010.  In July 2013, they were living with K.M. (Mother) in Wichita Falls, Texas. The Department removed the children after Mother tested positive for illegal drugs. At the time of the removal, Father lived approximately 425 miles away in Texas City, Texas.   The Department sought conservatorship of the children and termination of both parents' parental rights.   Mother died in December 2014.

The case was tried to a jury over five days in January 2015.   The jury instructions in the charge tracked family code section 161.001(b) and informed the jury that Father's parental rights could be terminated only if it was proven by clear and convincing evidence that (1) termination was in the best interest of the children and (2) Father did at least one of the following:

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

Engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children;  or

Failed to comply with the provisions of a court order that specifically established the actions necessary for the father to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children.

See Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.078, sec. 161.001(b) (West) (to be codified as an amendment to Tex. Fam.Code Ann. § 161.001) (hereinafter cited as Tex. Fam.Code Ann. § 161.001(b)).

The charge submitted a separate question for each child, “Should the parent-child relationship between [Father] and the child, [Jacob or Daisy], be terminated?”   The jury answered “yes” for each child, and the trial court entered judgment on the jury's verdict.   Father appealed.

II. Analysis

In his four issues, Father contends the evidence is legally and factually insufficient to support the jury's various findings.   When the jury found that Father's parental rights should be terminated, its findings implied that there was evidence to support at least one of the three statutory grounds for termination and that termination was in the best interest of each child.

A. Factual Sufficiency

In his first issue, Father contends that the evidence is factually insufficient to support the jury's finding that termination of the parent-child relationship was in the children's best interest.   See Tex. Fam.Code Ann. § 161.001(b)(2).   In his second, third, and fourth issues, Father argues that the evidence is factually insufficient to support the jury's findings under subsections (D), (E), and (O) of section 161.001(b)(1).   See id. § 161.001(b)(1)(D), (E), (O).   A complaint that the evidence is factually insufficient to support a jury answer, or that the answer is against the overwhelming weight of the evidence, must have been raised in a motion for new trial.  Tex.R. Civ. P. 324(b)(2)-(3);  In re M.S., 115 S.W.3d 534, 547 (Tex.2003).   Father did not file a motion for new trial.   Because a motion for new trial is a prerequisite to a factual sufficiency challenge, Father has waived the right to complain about the factual sufficiency of the evidence to support the jury's findings that termination was in the best interest of the children and its findings under subsections (D), (E), and (O) of section 161.001(b)(1).   See Tex.R. Civ. P. 324(b)(2)-(3);  In re A.J.L., 136 S.W.3d 293, 301 (Tex.App.—Fort Worth 2004, no pet.).   Accordingly, we overrule the portions of each of Father's four issues that challenge the factual sufficiency of the evidence.

B. Legal Sufficiency

In his first issue, Father also contends the evidence is legally insufficient to support the jury's finding that termination of the parent-child relationship was in the children's best interest.   See Tex. Fam.Code Ann. § 161.001(b)(2).   In his second, third, and fourth issues, Father argues that the evidence is legally insufficient to support the jury's findings under subsections (D), (E), and (O) of section 161.001(b)(1).   See id. § 161.001(b)(1)(D), (E), (O).

A no-evidence complaint is preserved through one of the following:  (1) a motion for instructed verdict;  (2) a motion for judgment notwithstanding the verdict;  (3) an objection to the submission of the issue to the jury;  (4) a motion to disregard the jury's answer to a vital fact issue;  or (5) a motion for new trial.  T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.1992);  see also In re D.J.J., 178 S.W.3d 424, 426–27 (Tex.App.—Fort Worth 2005, no pet).   Father did not make or file any of the motions necessary to preserve his legal sufficiency challenge.   Father objected to the jury charge on the grounds that the evidence was legally insufficient to support submission of the instructions on subsections (D), (E), and (O) of section 161.001(b)(1), but he did not object to the charge regarding the best interest instruction.   Therefore, Father has waived the right to complain about the legal sufficiency of the evidence to support the jury's finding that termination was in the best interest of the children.   See D.J.J., 178 S.W.3d at 426–27;  In re B.K.D., 131 S.W.3d 10, 15 (Tex.App.—Fort Worth 2003, pet. denied).   Accordingly, we overrule the remaining portion of Father's first issue.

We now turn to the remaining portions of Father's second, third, and fourth issues and address whether the evidence was legally sufficient to support the jury's findings on at least one of the three statutory grounds for termination.

1. Standard of Review

In a termination case, the State seeks not just to limit parental rights but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit.  Tex. Fam.Code Ann. § 161.206(b) (West 2014);  Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985).   Consequently, “[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures.”  In re E.R., 385 S.W.3d 552, 554 (Tex.2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S.Ct. 1388, 1391–92 (1982)).   We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent.  In re E.N.C., 384 S.W.3d 796, 802 (Tex.2012);  E.R., 385 S.W.3d at 554–55;  Holick, 685 S.W.2d at 20–21.

Termination decisions must be supported by clear and convincing evidence.   Tex. Fam.Code Ann. §§ 161.001(b), 161.206(a) (West 2014);  E.N.C., 384 S.W.3d at 802.  “[C]onjecture is not enough.”  E.N.C., 384 S.W.3d at 810.   Due process demands this heightened standard because “[a] parental rights termination proceeding encumbers a value ‘far more precious than any property right.’ ”  E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S.Ct. at 1397);  In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002);  see also E.N.C., 384 S.W.3d at 802.   Evidence is clear and convincing if it “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 (West 2014);  E.N.C., 384 S.W.3d at 802.

For a trial court to terminate a parent-child relationship, the party seeking termination must establish by clear and convincing evidence that the parent's actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child.  Tex. Fam.Code Ann. § 161.001(b);  E.N.C., 384 S.W.3d at 803;  In re J.L., 163 S.W.3d 79, 84 (Tex.2005).   Both elements must be established;  termination may not be based solely on the best interest of the child as determined by the trier of fact.   Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987);  In re C.D.E., 391 S.W.3d 287, 295 (Tex.App.—Fort Worth 2012, no pet.).

In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven.  In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005).   We review all the evidence in the light most favorable to the finding and judgment.  Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so.  Id. We disregard all evidence that a reasonable factfinder could have disbelieved.  Id. We consider undisputed evidence even if it is contrary to the finding.  Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not.   See id.  “A lack of evidence does not constitute clear and convincing evidence.”  E.N.C., 384 S.W.3d at 808.

We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder's province.   J.P.B., 180 S.W.3d at 573, 574.   And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable.  Id. at 573.

2. Applicable Law

The jury implicitly determined that Father did at least one of the following:  (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being;  (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being;  or (3) failed to comply with the provisions of a court order that specifically established the actions necessary for Father to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children's removal from the parent under chapter 262 for the abuse or neglect of the children.   See Tex. Fam.Code Ann. § 161.001(b)(1)(D), (E), (O).   We first determine whether the evidence was legally sufficient to support a finding under subsection (D) or (E).   See id. § 161.001(b)(1)(D), (E).

“Endanger” means to expose to loss or injury, to jeopardize.  Boyd, 727 S.W.2d at 533;  In re J.T.G., 121 S.W.3d 117, 125 (Tex.App.—Fort Worth 2003, no pet.).   Under subsection (D), it is necessary to examine evidence related to the environment of the children to determine if the environment was the source of endangerment to the children's physical or emotional well-being.  J.T.G., 121 S.W.3d at 125.   A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards.  In re S.M.L., 171 S.W.3d 472, 477 (Tex.App.—Houston [14th Dist.] 2005, no pet.).   Inappropriate, abusive, or unlawful conduct by persons who live in the child's home or with whom the child is compelled to associate on a regular basis in his home is a part of the “conditions or surroundings” of the child's home under section 161.001(b)(1)(D).  Castorena v. Tex. Dep't of Protective & Regulatory Servs., No. 03–02–00653–CV, 2004 WL 903906, at *8 (Tex.App.—Austin Apr. 29, 2004, no pet.) (mem.op.);  see also In re W.S., 899 S.W.2d 772, 776 (Tex.App.—Fort Worth 1995, no writ) (stating that “environment” refers not only to the acceptability of living conditions but also to a parent's conduct in the home).   Parental and caregiver illegal drug use and drug-related criminal activity supports the conclusion that the children's surroundings endanger their physical or emotional well-being.   See In re S.D., 980 S.W.2d 758, 763 (Tex.App.—San Antonio 1998, pet. denied).

Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the children's physical or emotional well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act.  J.T.G., 121 S.W.3d at 125;  see Tex. Fam.Code Ann. § 161.001(b)(1)(E).   Additionally, termination under subsection (E) must be based on more than a single act or omission;  the statute requires a voluntary, deliberate, and conscious course of conduct by the parent.  J.T.G., 121 S.W.3d at 125;  see Tex. Fam.Code Ann. § 161.001(b)(1)(E).   It is not necessary, however, that the parent's conduct be directed at the children or that the children actually suffer injury.  Boyd, 727 S.W.2d at 533;  J.T.G., 121 S.W.3d at 125.   The specific danger to the children's well-being may be inferred from parental misconduct standing alone.  Boyd, 727 S.W.2d at 533;  In re R.W., 129 S.W.3d 732, 738 (Tex.App.—Fort Worth 2004, pet. denied).

3. Analysis

Father testified that Mother and Father were never married.   They were both living in the Galveston area when they met.   Their relationship began about a year before Jacob was born in December 2007.   They temporarily split up about seven or eight months before Jacob was born.   From that point on, Mother and Father's relationship was on and off “like every six months.”

Father admitted that while he and Mother were together, she used illegal drugs in his presence.   He thought she used drugs about once a week.   Father stated that when Mother used drugs, she “just wasn't herself.”   Her speech would sometimes be slurred, and she would become sleepy.   Sometimes, she was incoherent.

Father testified that during a period in which he and Mother were not together, the Department removed Jacob from Mother because of her drug use and placed him with Father.   After the Department closed out the case, Mother came and got Jacob and left.   Mother told Father she was going to north Texas “to get straight.”   Father testified that he did not know if Mother was using drugs at that time, but he did not try to stop her from taking Jacob because he and Mother had joint custody of Jacob.

Shortly after Daisy was born, Mother and Father broke up for good.   After the breakup, Mother still lived in Galveston and was in and out of Father's life.   At some point, Mother and the children moved to the Wichita Falls area.   Father believed that she was still using drugs at that time.   At first, Father did not know exactly where Mother moved, but he later found out that she was living with her aunt, B.T. (Aunt Beth), in either Petrolia, Henrietta, or Wichita Falls.   Mother would call Father whenever she needed money, which was every two weeks to a month, and Father would wire money to Mother in varying amounts.

In March 2012, while Mother was living with the children in Petrolia and Henrietta, the Department received another referral for the family alleging drug use and unsanitary living conditions.   Father testified that he came to Petrolia where Mother was living to take care of the children and to help Mother “get clean.”   Father stayed for a month, and according to Father, Mother seemed “clean” during that time.   Father did not attempt to bring the children back with him to Galveston.

According to Father, Mother left the children with him for four to five months at one point.   At the time, Father and the children were living with his mother at her home in the Galveston area.   Mother showed up “in a bad way with no place to live.”   Father's Mother let her in the house.   After Father caught Mother using illegal drugs in the house, he asked her to leave.   Mother left while he was at work and took the children with her.   Father made no effort to get the children back from Mother.   Father contacted Aunt Beth and learned that Mother and the children were with her in Wichita Falls.   Father remained in Galveston and did not attempt to take the children from Mother.   Father claims the children were removed by the Department a week later.   This removal gave rise to present appeal.

Jennifer Pond is employed by the Department and works in Family Based Safety Services (FBSS), an area of the Department whose goals are to work with families to keep children in their homes and to reduce the risk of children being removed.   FBSS's services include counseling and drug assessment and treatment.   Pond testified that she received this case in May 2013.   On May 8, 2013, she did a home assessment at Aunt Beth's home in Wichita Falls.   Mother, Jacob, and Daisy were there.³  Father was not present.

At the time of the assessment, Mother and the children were living with Aunt Beth. Pond did not have any concerns about the children's appearance, and their education was on target.   After the assessment, Pond felt the family needed counseling, a drug assessment and follow through with either outpatient or inpatient drug treatment, random drug testing, random home visits, parenting classes, and N.A. meetings.   Pond testified that the Department contacted Father regarding the investigation and sent a letter to Father offering services but received no response.

Pond testified that the case progressed slowly in June 2013 and stopped progressing in July 2013 when Pond was unable to locate Mother and the children.   After speaking with relatives, Pond located Mother and the children at another residence.   Pond told Mother she needed to take a drug test because she had been avoiding it.   Mother admitted to using illegal drugs and tested positive.

Pond testified that she informed Mother that the children had to be placed outside of Mother's home because of her drug use.   Mother called Father on Pond's cellphone and asked Father if he could take the children because she tested positive for illegal drugs.   Pond overheard Father yelling at Mother and calling her “druggie” and other names.   Father hung up on Mother and called Pond over an hour later.   They discussed placement options for the children, and Father admitted that Mother's drug use had been going on for a long time.   He stated that he had stopped sending money to Mother for the children's support because Mother would “stick it in her arm.”   He stated that Mother used cocaine, methamphetamine, and heroin.   Father told Pond that he knew Mother used drugs all the time and that he did not know who was around the children or where Mother was taking them when she was using drugs.   He also stated that he did not know if Daisy was his child.

Contrary to Father's testimony that the children were with him a week before the removal, Pond testified that it appeared that it had been six months to a year since he had seen the children.   When Father traveled to Wichita Falls for the adversary hearing shortly after the children's removal, Pond arranged for Father to have a supervised visit with the children.   Jacob appeared to know Father.   Daisy did not.

Cynthia Chandler, a caseworker who became involved in the case in April 2014, testified that through her discussions with Father, she learned he was very aware of Mother's drug use and that the children were with her while she was using drugs.   He was also aware that Mother could not “stay clean.”

Because the evidence pertaining to subsections (D) and (E) is interrelated, we may conduct a consolidated review of the evidence supporting these findings.   In re T.N.S., 230 S.W.3d 434, 439 (Tex.App.—San Antonio 2007, no pet.);   J.T.G., 121 S.W.3d at 126.   In his second and third issues, Father argues that the evidence was legally insufficient to support the jury's findings under either subsection (D) or (E) because Mother left him and took the children with her and there was no evidence that he ever placed the children with Mother or allowed them to remain with her.   Father also argues that Mother had court-ordered custody of Jacob and that he had no legal rights or duties to Daisy because he was not adjudicated to be her father until after this case began.⁴

Viewing the evidence under the standard set forth above, we conclude the jury could have formed a firm belief or conviction that Father knowingly placed and knowingly allowed Jacob and Daisy to remain in an endangering environment with Mother and that he knowingly placed the children with Mother, a person who engaged in endangering conduct.   As outlined above, the evidence shows that Father allowed the children to remain with Mother even though he was aware of her continued drug use and knew that she used drugs while the children were with her.   He testified that he and Mother had joint custody of Jacob and that he knew Daisy was his child when she was born and never questioned that she was his child at any point.   Father never attempted to remove the children from Mother or sought the Department's or a court's intervention to remove the children from Mother.   Thus, we hold the evidence is legally sufficient to support the jury's findings under subsections (D) and (E).   Accordingly, we overrule Father's second and third issues.

Because of our disposition of Father's second and third issues, we need not address the remaining portion of his fourth issue in which he argues that the evidence is legally insufficient to support the jury's findings under subsection (O).   See Tex.R.App. P. 47.1;  In re E.M.N., 221 S.W.3d 815, 821 (Tex.App.—Fort Worth 2007, no pet.) (providing that along with a best interest finding, a finding of only one ground alleged under section 161.001(b)(1) is sufficient to support a judgment of termination).

III. Conclusion

Having overruled Father's first, second, and third issues in their entirety and his fourth issue in part and having determined that we need not address the remaining portion of his fourth issue, we affirm the trial court's judgment.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   2 Except for employees of the Department of Family and Protective Services (the Department), we use aliases to protect the identities of the individuals involved in this case.   See Tex.R.App. P. 9.8(b)(2).

3.   3 L.M. (Lana), Mother's daughter from another relationship was also present at the home assessment.   L.B. (Linda), Mother's daughter from a different relationship, was also part of the Department's investigation, but she was living with her aunt in the Houston/Galveston area at the time of the home assessment and was not present.   Linda returned to Mother and was removed with Jacob and Daisy in July 2013.   Lana was living with her father in Galveston at that time.

4.   4 ln September 2013, a DNA test confirmed that Father was Daisy's father, and he was adjudicated Daisy's Father by the trial court.

ANNE GARDNER JUSTICE