In Re SMLD

150 S.W.3d 754, 2004 WL 2168625
CourtCourt of Appeals of Texas
DecidedSeptember 23, 2004
Docket07-04-0060-CV
StatusPublished

This text of 150 S.W.3d 754 (In Re SMLD) 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 SMLD, 150 S.W.3d 754, 2004 WL 2168625 (Tex. Ct. App. 2004).

Opinion

150 S.W.3d 754 (2004)

In the Interest of S.M.L.D., A Child.

No. 07-04-0060-CV.

Court of Appeals of Texas, Amarillo.

September 23, 2004.

*755 C.J. McElroy, Vance E. Ivy, Packard, Hood, Bednarz Johnson & Ivy, L.L.P., Amarillo, for appellant.

Habon Y. Mohamed, Asst. Potter County Atty., Amarillo, for appellee.

Edward K. Norfleet Jr., Amarillo, for ad litem.

Before QUINN and REAVIS and CAMPBELL, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

Appellants Shelly Carter and Dwayne Lynn Dale appeal the termination of their parental rights to the child S.M.L.D. The child was removed from Carter's care after the child tested positive for cocaine and methamphetamines at birth. We will affirm the trial court's judgment.

On August 2, 2002, Carter went to the hospital and was informed by the hospital staff that her baby was to be delivered that day. After arguing with the anesthesiologist, Carter left the hospital and went home. When she arrived home, Dale, the child's father, was there smoking crack cocaine. Carter testified that she "took a hit" of cocaine at that time. S.M.L.D. was born on August 5, 2002, and tested positive for both cocaine and methamphetamines at the time of her birth. The child suffered from drug withdrawal symptoms and, as a *756 result, was placed in a neonatal intensive care unit for a week following her birth. To alleviate symptoms of withdrawal from the drugs, she was medicated with phenobarbital for several days. On her release from the hospital August 9, she was taken into the possession of the Texas Department of Protective and Family Services.

On August 12, 2002, the department filed an original petition for protection of the child and seeking conservatorship. A full adversary hearing was held August 22, 2002, and the department was appointed temporary managing conservator of the child. In October of 2003 the department amended its original petition to seek termination of parental rights of Carter and Dale, if reunification of the child with the parents could not be achieved. On December 22, 2003, a final hearing was held and neither parent appeared. A judgment was entered terminating Carter's and Dale's parental rights. Both Carter and Dale filed motions for a new trial alleging they did not receive notice of the final hearing. The motions for new trial were granted and another final hearing was held on February 13, 2004, at which both parents appeared represented by counsel. Following the non-jury trial, a judgment was entered terminating the rights of both parents. The department was named managing conservator of the child. Both Carter and Dale filed timely notices of appeal.

Issues

Carter and Dale each present two issues, that the evidence presented at trial was legally insufficient and factually insufficient to support the judgment of termination under Section 161.001.[1] They also challenge the court's finding that termination of their parental rights was in the best interest of the child. The judgment may be affirmed if it is supported by evidence sufficient to establish that one of the grounds listed in Section 161.001(1) exists and that termination is in the best interest of the child as required by Section 161.001(2). In re A.V., 113 S.W.3d 355, 362 (Tex.2003); In re P.E.W., 105 S.W.3d 771, 777 (Tex.App.-Amarillo 2003, no pet.).

The trial court found that appellants knowingly placed or allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, Section 161.001(1)(D); that appellants 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, Section 161.001(1)(E); and that termination of parental rights between appellants and their child was in the best interest of the child, Section 161.001(2). Because we find the evidence sufficient to support the findings under Section 161.001(1)(E) and Section 161.001(2), we consider only the evidence addressing those grounds.

Law

Findings under Section 161.001 must be based on clear and convincing evidence. Clear and convincing evidence is the 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. The clear and convincing evidence burden of proof requires a higher level of appellate scrutiny in reviewing the legal and factual sufficiency of the evidence. In re J.F.C., 96 S.W.3d 256 (Tex.2002); In re C.H., 89 S.W.3d 17, 23 (Tex.2002).

*757 In reviewing legal sufficiency, we look at all the evidence, in the light most favorable to the judgment, to determine if the trier of fact could reasonably have formed a firm belief or conviction that grounds existed for termination under the Family Code. Tex. Fam.Code Ann. §§ 161.001, 161.206(a) (Vernon 2002 & Supp.2004); In re J.F.C., 96 S.W.3d at 265-66. In review of a factual sufficiency challenge we must consider all the evidence the fact finder could reasonably have found to be clear and convincing, determining whether, on the entire record, the fact finder could reasonably form a firm belief or conviction of the truth of the department's allegations. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25, 27-29. In so doing, we consider whether disputed evidence is such that a reasonable fact finder could have resolved it in favor of its finding. If, in light of the entire record, disputed evidence that a reasonable fact finder could not have resolved in favor of the finding is so significant as to prevent a fact finder reasonably from forming a firm belief or conviction of the truth of the finding, then the evidence is factually insufficient. See In re J.F.C., 96 S.W.3d at 266.

In the context of our review of the evidence that appellants' conduct endangered the child's physical or emotional well-being, to "endanger" means to expose to loss or injury; to jeopardize. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). Although "endanger" means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child must actually suffer injury. In re M.C., 917 S.W.2d 268, 269 (Tex.1996). A danger to the child's well-being may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533. An endangerment inquiry under Section 161.001(1)(E) focuses on the conduct of the parent, including the parent's actions or omissions or failures to act. See In re D.T., 34 S.W.3d 625, 634 (Tex.App.-Fort Worth 2000, pet. denied).

Endangerment — Carter

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Bluebook (online)
150 S.W.3d 754, 2004 WL 2168625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smld-texapp-2004.