In Re JW

152 S.W.3d 200, 2004 WL 2802468
CourtCourt of Appeals of Texas
DecidedJanuary 13, 2005
Docket05-03-01582-CV
StatusPublished

This text of 152 S.W.3d 200 (In Re JW) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JW, 152 S.W.3d 200, 2004 WL 2802468 (Tex. Ct. App. 2005).

Opinion

152 S.W.3d 200 (2004)

In the Interest of J.W., a Child.

No. 05-03-01582-CV.

Court of Appeals of Texas, Dallas.

December 2, 2004.
Rehearing Overruled January 13, 2005.

*203 Jimmy L. Verner, Jr., Verner & Brumley, Dallas, for Appellant.

David Cole, Dallas, for Appellee.

Before Justices O'NEILL, LANG, and LANG-MIERS.

OPINION

Opinion by Justice LANG.

Harry Smith appeals the trial court's judgment, following a jury trial, terminating the parental rights to his daughter, J.W. In seven issues, Smith argues that the evidence was legally and factually insufficient to support the trial court's judgment. Because we conclude that (1) Smith engaged in conduct that endangered the child's physical or emotional well-being, and (2) termination is in the child's best interest, we resolve these issues against Smith and affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 2000, Smith was convicted of attempting to smuggle cocaine and sentenced to thirty months in federal boot camp. Before he was to surrender into custody in May 2000, Smith began a sexual relationship with Deanna Wyrick. Smith and Wyrick expressly desired to conceive a child, and, although unaware of the pregnancy until September or October 2000, Wyrick did become pregnant by Smith. During their relationship, Smith knew that Wyrick was using drugs, and, on more than one occasion, drove Wyrick to the necessary places for her to obtain drugs. Wyrick, who continued to use drugs during the balance of the pregnancy, gave birth to J.W. in December 2000.

In 2001, Child Protective Services removed J.W. from Wyrick's custody. Seven weeks later, J.W. was placed in the home of appellees, Benjamin and Lara Olsson. Smith did not learn of his daughter's birth until he received a letter from the Olssons in August 2002, along with the Olssons' petition for termination. Smith responded, in his original answer, by requesting possession of J.W.

The Olssons provided Smith access to the child, without a court order, from September to December 2002. Following a temporary hearing in January 2003, the trial court ordered access for Smith twice *204 each week. The Olssons moved to Arkansas in June 2003.

At trial, evidence was presented that Smith had been a supplier of illegal drugs to numerous drug houses. Smith testified that he "had friends and associates who sold drugs, and would go with them when they sold drugs." However, Smith testified that, since his release from federal boot camp in 2000, he left his former lifestyle behind. Also, he presented witnesses to testify to his present good character.

In May 2003, Smith married Jan Murphy. Murphy was accused at trial of being an alcoholic. Murphy's daughter and granddaughter testified regarding Murphy's alcoholism and tendency to be physically violent. In particular, Murphy's daughter, Sherry Spillman, testified regarding one episode in which Murphy, during a heated argument, held a gun to the head of her former husband.

At the conclusion of trial, the jury found, by clear and convincing evidence, at least one of the enumerated requirements for terminating the parent-child relationship under family code section 161.001(1), and, under family code section 161.001(2), termination was in J.W.'s best interest.

II. STANDARD OF REVIEW

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. Tex. Fam.Code Ann. § 161.206(a) (Vernon 2002); In re J.F.C., 96 S.W.3d 256 (Tex.2002). The clear and convincing standard creates a higher burden to fulfill because of the severity and permanency of terminating the parent-child relationship. In re J.N.R., 982 S.W.2d 137, 141 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Accordingly, an appellate court must also have a higher standard when reviewing the legal and factual sufficiency of the evidence. In re J.F.C., 96 S.W.3d at 264-65; In re C.H., 89 S.W.3d 17, 26 (Tex.2002).

In reviewing the legal sufficiency of the evidence to support a termination finding, this court looks at all the evidence, in the light most favorable to the finding, to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. In doing so, we presume that the factfinder settled disputed facts in favor of the finding if a reasonable factfinder could do so. Id. As a corollary, we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a termination finding, we inquire as to whether all the evidence, both in support of and contrary to the trial court's finding, is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. In re C.H., 89 S.W.3d at 27-29. Further, we consider whether the disputed evidence is such that a reasonable factfinder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

III. TERMINATING THE PARENT-CHILD RELATIONSHIP

Section 161.001 of the Texas Family Code permits a court to order termination of parental rights if two elements are established. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). First, the parent must have engaged in any one of the acts or omissions itemized in the first subsection *205 of the statute. Id. § 161.001(1); Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex.App.-Dallas 1995, no writ.). Second, termination of the parent-child relationship must be in the best interest of the child. Tex. Fam.Code Ann. § 161.001(2); In re J.R.K., 104 S.W.3d 341, 342 (Tex.App.-Dallas 2003, no pet.).

A. Endangerment

In Smith's fifth issue, he claims that there was no evidence or, in the alternative, insufficient evidence to support the jury's finding that he engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child. See Tex. Fam.Code Ann. § 161.001(1)(E). Subsection (E)'s provisions are different in several respects from the other enumerated acts in section 161.001(1).

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Bluebook (online)
152 S.W.3d 200, 2004 WL 2802468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jw-texapp-2005.