B. W. v. Texas Department of Protective and Regulatory Services

• Court: Court of Appeals of Texas
• Decided: July 17, 1996
• Docket: 03-95-00735-CV
• Status: Published

Opinion

WALLACE

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00735-CV

B. W., Appellant

v.

Texas Department of Protective and Regulatory Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 95-00696, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

The Texas Department of Protective and Regulatory Services ("the Department") filed a petition to terminate B.W.'s parental rights to her daughter K.W. The trial court determined that B.W. engaged in conduct which endangered her child's physical or emotional well-being and that termination was in the best interest of the child. See Act of May 23, 1989, 71st Leg., R.S., ch. 808, § 1, 1989 Tex. Gen. Laws 3673, 3673-74 (formerly Texas Fam. Code Ann. §§ 15.02(1)(D)&(E), (2), since repealed and codified as section 161.001(1)(D)&(E), (2) of the Family Code). B.W. brings seven points of error, alleging that the evidence is legally and factually insufficient to support the statutory grounds for termination. She further complains that the termination of a parent-child relationship under section 161.001(1)(M) based on the termination of parental rights to other children is a denial of due process under the Fourteenth Amendment to the United States Constitution and under Article I, section 19 of the Texas Constitution. U.S. Const. amend. XIV; Tex. Const. art. I, § 19. We will affirm the trial court's order.

STANDARD OF REVIEW

B.W. contends that the evidence is legally and factually insufficient to meet the clear and convincing standard of proof required to terminate her parental relationship. See In re G. M., 596 S.W.2d 846, 847 (Tex. 1980). When both no-evidence and factual sufficiency challenges are raised, we must first examine the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). In deciding whether or not the evidence is legally sufficient, this Court considers only the evidence and inferences tending to support the findings and disregards all evidence and inferences to the contrary. D. O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ). In deciding whether the evidence is factually sufficient, this Court considers and weighs all the evidence and will set aside the order only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (1951). The clear and convincing standard of proof required to terminate parental rights does not alter the appellate standard of review. D.O., 851 S.W.2d at 353.

CONDITIONS AND CONDUCT THAT ENDANGERED THE CHILD

In her first four points of error, B.W. complains that there is no evidence or factually insufficient evidence that she placed or allowed K.W. to remain in conditions which endangered the child's physical or emotional well-being or that her conduct endangered K.W.'s physical or emotional well-being. We will discuss all four points of error together as we review the evidence to determine if it is legally and factually sufficient to uphold the trial court's findings.

In 1979, B.W. began a relationship with Gus Frithiof, the father of her first four children. During the course of their relationship, Frithiof drank heavily and abused B.W. physically, mentally, and emotionally. B.W. testified that she questioned whether Frithiof might be sexually assaulting his own daughters. Following allegations of child abuse against B.W. and her husband, the Department became involved with B.W. in 1984. The Department established various treatment goals and objectives to address the problems of abuse and to improve her ability to be an effective parent. To accentuate the dangers of her physically abusive relationship, the Department conditioned B.W.'s retaining custody of her four children on her agreement to stay away from Frithiof. Placing her desires above the safety and welfare of her children, B.W. reneged on that agreement and reunited with her abuser. Her four children were eventually removed because of abuse and neglect, and B.W. ultimately relinquished her parental rights to those children.

Following her relationship with Frithiof, B.W. began a relationship with a man she described as a drug user and dealer who also physically abused her. After that, B.W. became involved with K.W.'s father, Don Gautier; K.W. was born in 1991. Gautier physically abused B.W. and K.W. He was eventually jailed for assaulting B.W. On one occasion, Gautier became angry and stomped on K.W. After checking the child, B.W. thought nothing was wrong, but a doctor recommended that K.W. be taken to the emergency room for treatment. Following her relationship with Gautier, B.W. married her current husband, Roy Hernandez. B.W. testified at trial that he has a drinking problem and becomes violent. While the Department has attempted to provide counseling and direction to help B.W. stay away from abusive relationships, B.W. has chosen to ignore this help and remain in situations that are dangerous to herself and her child.

In addition to subjecting her to a consistent pattern of family violence, B.W. neglected K.W. in several specific instances. In August of 1993, B.W. was arrested for prostitution. The officer testified that B.W. appeared to be intoxicated and insisted that her child was at a local motel commonly used for prostitution. After knocking on the doors of over half of the rooms at the motel, the police were unable to find K.W.

A month later, a police officer pulled over a van with a fictitious registration some time after midnight. The officer found K.W. asleep in the back seat, unrestrained and wearing a filthy diaper. The driver had needle marks on his arms and lied to police about his identity. After searching for B.W. for an hour and a half, the police were called down the street to an altercation involving her and another woman. The police officer who interviewed B.W. said she was intoxicated. As a result of this incident she received another referral to the Department. After an assessment, the Department again determined that she needed parenting skills classes, substance abuse treatment, and services through the Center for Battered Women. The Department arranged for intensive out-patient substance abuse treatment for B.W. as well as protective day services for K.W. B.W., denying she had a substance abuse problem, refused to cooperate with the drug dependency treatment program.

The incident which initiated the string of events that culminated in the filing of this petition for termination of parental rights occurred on January 18, 1995. B.W. testified that she and K.W. had been out driving with her husband, Roy Hernandez, when their vehicle broke down. Seeking help, the family forced their way into a home near the stalled car. The occupant of the home confronted the intruders with a shotgun but did not fire because he saw K.W. in B.W.'s arms. A police officer responding to the homeowner's complaint described B.W. as intoxicated: she had difficulty standing and seemed to be in a stupor. K.W. was immediately taken into custody by Child Protective Services. A worker reported that K.W. was dirty with matted hair and blackened teeth; one tooth was chipped. In spite of the child's condition, she was returned to her mother, who was again offered services through the Department.

On May 13, 1995, a police officer was dispatched to investigate a disturbance involving B.W., her husband, and Ronald Kee. When the police officer arrived at the home, he noted that B.W. had been drinking. After learning of outstanding warrants for B.W., the officer attempted to arrest her. As the officer approached B.W., she picked up K.W. in an effort to avoid arrest. After B.W. was arrested, the officer attempted to locate K.W.'s next of kin in order to place her in their custody. B.W. suggested leaving K.W. at Kee's residence but later commented that Kee had allegedly attempted to molest K.W. Unable to locate a suitable placement for K.W., the officer contacted Child Protective Services. When K.W. was taken into custody and examined, she had head lice, numerous ant bites, scabies on her arms and legs, bruises on both upper arms, walked with a limp, and had no underwear.

In addition to placing K.W. in so many dangerous situations, B.W. has also had numerous contacts with the criminal justice system. Since K.W.'s birth, B.W. has been cited for driving while intoxicated and has been arrested twice for prostitution.

B.W. contends that the situations we have described were not dangerous or harmful and that there is no evidence linking her actions with any dangerous situation in which K.W. was found. Her contentions are defeated by the overwhelming weight of the evidence which indicates that B.W. did place K.W. in situations that were dangerous to a child. Based on the record, we are persuaded that clear and convincing evidence exists that is both legally and factually sufficient to support the trial court's findings that B.W. endangered her child by her conduct and by knowingly placing her in situations that could not nurture her physical and emotional well-being. The record is replete with evidence of conduct by B.W. that endangered her child. Likewise, this record is full of instances when B.W.'s recurring neglect endangered both her child's physical and emotional well-being. We overrule B.W.'s first four points of error.

BEST INTEREST OF THE CHILD

In her sixth and seventh points of error, B.W. attacks the trial court's finding that termination of her parental rights would be in the best interest of the child. Considerations relevant to determining the best interest of a child are: the desires of the child; her emotional and physical needs, now and in the future; emotional and physical danger to the child, now and in the future; the parental abilities of the individuals seeking custody; the programs available to assist these individuals to promote the best interest of the child; the plans for the child and the stability of the home; the acts or the omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and any excuse of the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

We have already reviewed the overwhelming evidence of B.W.'s poor parenting skills and the danger they present to her child. Likewise the record reflects that she is unable or unwilling to take advantage of the programs available to improve her parenting skills, can offer the child no stability, and is incapable of promoting the child's best interest. The record is full of evidence of B.W.'s dysfunctional relationships with violent men, dating back to 1984. Her continuing problems with substance abuse are closely related to the instances of neglect and conduct that endangered her child. Despite the Department's numerous attempts to intervene, B.W. refuses to help herself. Even after the Department conditioned B.W. retaining custody of her four older children on staying away from an abusive relationship, she could not comply. B.W. has consistently engaged in acts that endanger her life and the well-being of her child. Years of help provided by the Department have not effected any change in this behavior. Based on the record, the trial court could have found that it was in the child's best interest to place her in a safer environment than B.W. has been able to provide. The evidence is legally and factually sufficient to support the trial court's finding that K.W.'s best interests are served by terminating B.W.'s parental rights. We overrule points of error six and seven.

CONSTITUTIONAL CHALLENGE

B.W. contends in her fifth point of error that Section 161.001(1)(M) of the Family Code, which permits termination on the basis of a finding that a parent's rights to a prior child have been terminated, is unconstitutional. However, this Court does not reach constitutional issues if the matter can be resolved on another basis. Horton v. Horton, 625 S.W.2d 78, 79 (Tex.App.--Fort Worth 1981, writ ref'd n.r.e.). We are able to resolve this matter on the basis of the sufficiency of the evidence supporting termination regarding only the conduct concerning this child under section 161.001 (D) and (E). Therefore we do not reach the constitutional issues presented. We overrule point of error five.

CONCLUSION

Finding no error, we affirm the trial court's order terminating B.W.'s parental rights.

Bea Ann Smith, Justice

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: July 17, 1996

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