in the Interest of Dekota Podzemny, a Child

• Court: Court of Appeals of Texas
• Decided: November 28, 2001
• Docket: 07-00-00567-CV
• Status: Published

Opinion

NO. 07-00-0567-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 28, 2001

______________________________

IN THE INTEREST OF D.P., A CHILD

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 60,452-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

Alisha Cordell appeals from an order following a bench trial terminating her parental

rights to her son, D.P., a minor child, where no findings of fact and conclusions of law were

requested, and none were signed or filed. By two points of error, Cordell contends the

evidence is legally and factually insufficient to terminate her parental rights. Based upon

the rationale expressed herein, we reverse the judgment and remand the cause to the trial

court. Cordell is the natural mother of D.P., who was born on February 15, 1999. Because

Cody Podzemny was originally thought to be the natural father of the child, he was joined

as a party, but after tests showed that he was not the natural father, he was dismissed and

Michael Jean Cates was made a party. Cates filed a voluntary affidavit of relinquishment

of his parental rights.

During all relevant times, Podzemny and Cordell resided together. On May 22,

1999, when D.P. was about three months old, Cordell took him to the emergency room

because he had been vomiting for several hours. At that time, no visible injuries or bruises

on the infant were noted; however, x-rays indicated that D.P. had suffered several

fractures of his ribs. The medical professionals concluded that the fractures had occurred

at various times within the last 30 days and that they were not the result of an accident.

One professional concluded that the child was a victim of abuse or neglect. Four days

after D.P. was taken to the hospital, the Department of Protective and Regulatory Services

(the Department) assumed custody of the child by emergency order signed May 26, 1999.

Following a non-jury trial, the court terminated Cordell’s parental rights concluding that she

had (a) knowingly placed or knowingly allowed the child to remain in conditions or

surroundings that endangered the physical or emotional well-being of the child; (b)

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; and (c) termination of

2 Cordell’s parental rights was in the best interest of the child. See Tex. Fam. Code Ann.

§ 161.001(1) (D) and (E) and (2) (Vernon Pamph. Supp. 2002).1

By two points of error, Cordell contends the evidence is legally and factually

insufficient to terminate her parental rights. By her argument and briefing, she limits her

challenges to the grounds designated under section 161.001(1) (D) and (E). Because both

of these grounds implicate the term “knowingly,” we first consider the definition of the term.

Knowingly

As material here, subsections (D) and (E) provide as follows:

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

Although the term “knowingly” is defined in section 6.03(b) of the Texas Penal Code, it is

not defined in chapter 161 of the Family Code. Because the parties have not presented

any definition, statutory or otherwise, of the term for purposes of termination proceedings,

the Code Construction Act directs that we read the term in context and construe it with the

rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998).

1 All references herein to section 161.001 are to the Texas Family Code Annotated (Vernon Pamph. Supp. 2002).

3 Webster’s Third New International Dictionary 1252 (1976) defines the adverb

“knowingly” as follows:

in a knowing manner; with awareness, deliberateness or intention.

Black’s Law Dictionary 872 (6th ed. 1990) defines the term as follows:

[w]ith knowledge; consciously; intelligently, wilfully; intentionally. An individual acts “knowingly” when he acts with awareness of the nature of his conduct.

Considering the constitutional implications of a proceeding to terminate parental rights and

the above definitions, we will conduct our review to determine whether the evidence is

legally and factually sufficient to support a finding that Cordell’s conduct was committed

“knowingly.”

Standard of Review

The natural right existing between parents and their children is of constitutional

dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination

proceedings must be strictly scrutinized. In Interest of G.M., 596 S.W.2d 846 (Tex. 1980).

A termination decree is complete, final, irrevocable, and divests for all time that natural

right as well as all legal rights, privileges, duties, and powers with respect to each other

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. In proceedings to

terminate the parent-child relationship brought under section 161.001 of the Family Code,

4 the petitioner must establish one or more acts or omissions enumerated under subsection

(1) of the statute, and must additionally prove that termination of the parent-child

relationship is in the best interest of the child. Both elements must be established and

proof of one element does not relieve the petitioner of the burden of proving the other.

See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).

Because termination of parental rights is of such weight and gravity, due process

requires the petitioner to justify termination by clear and convincing evidence. § 161.001.

In Interest of G.M., 596 S.W.2d at 847. This standard is defined as “that measure or

degree of proof which 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.” Id. Although the clear and

convincing burden of proof required at the trial level is well settled, appellate courts have

struggled to reconcile this burden of proof with the standard for appellate review of

challenges to the sufficiency of evidence. As this Court has previously noted, the clear

and convincing standard does not alter the rules generally applicable when appellate

courts review factual findings. In Interest of R.D.S., 902 S.W.2d 714, 716 (Tex.App.--

Amarillo 1995, no writ).

That being said, we turn to the well settled standards of review for challenges to

sufficiency of the evidence. When presented with a challenge to the legal sufficiency of

the evidence, the reviewing court must consider all the evidence in a light most favorable

to the party in whose favor the finding was rendered indulging every reasonable inference

5 in that party's favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276,

285-86 (Tex. 1998). If there is any evidence of probative force to support the finding, the

finding must be upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.

1997). In reviewing a challenge to the factual sufficiency of the evidence, the court must

consider, weigh, and examine all the evidence of record. Plas-Tex, Inc. v. U.S. Steel

Corp., 772 S.W.2d 442, 445 (Tex. 1989). The court should set aside a finding only if the

evidence which supports the finding 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).

Analysis

Cordell testified that she took her son to the emergency room because he had been

vomiting for several hours. Testimony of emergency room personnel and physicians

established that (1) x-rays disclosed the child had suffered several broken ribs but, (2)

there were no external or visible indications of injury to the ribs. Although Cordell

acknowledged that she and Podzemny had engaged in some acts of domestic violence

directed toward each other, she attributed D.P.’s injuries to the babysitter. Because there

is some evidence of probative force to support the trial court’s finding and considering the

evidence in a light most favorable to the Department and indulging every reasonable

inference in its favor, we conclude the evidence is legally sufficient to support the

termination order. Point of error one is overruled.

6 We begin our factual sufficiency review by revisiting the article written by former

Chief Justice Robert W. Calvert. He wrote:

“Insufficient evidence” points may, and should, be sustained when the record discloses either of the following situations: (a) the evidence is factually insufficient to support a finding of a vital fact, or (b) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361,

366 (1960). Because no eye-witnesses testified as to who injured D.P. or when and how

the injuries occurred, there is little, if any direct evidence regarding these matters.

However, even though causation can be established by circumstantial evidence when it

may be fairly and reasonably inferred from other facts proved by direct evidence, a vital

fact may not be established by “piling inference upon inference.” See Schlumberger Well

Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854, 858 (Tex. 1968); Roth v. FFP

Operating Partners, 994 S.W.2d 190,197 (Tex.App.--Amarillo 1999, pet. denied).

We first address the contention that Cordell engaged in conduct that endangered

D.P. which is part of the requirement under section 161.001(1)(E). Termination under this

provision may not be based on a single act or omission, but a showing of a course of

conduct is required. See In Re D.T., 34 S.W.3d 625, 634 (Tex.App.--Fort Worth 2000, no

pet.) (reversing on grounds of factual insufficiency). Also, under this section, the cause

of the danger to the child must be the parent’s conduct alone as shown by actions or

7 omissions or failure to act. See Doyle v. Texas Dept. of Pro. And Reg. Serv., 16 S.W.3d

390, 395 (Tex.App.--El Paso 2000, pet. denied) (reversing on grounds of factual

insufficiency). Regarding this issue, the Department candidly acknowledges in its brief:

[w]hile it is impossible to avoid the suspicion that Appellant personally inflicted the child’s injuries, there is no direct evidence of that fact in the record.

However, evidence raising a suspicion only is not clear and convincing evidence sufficient

to support a finding that Cordell caused the injuries or engaged in conduct that

endangered D.P.

We next consider the Department’s remaining contentions that under section

161.001(1) (D) and (E), Cordell acted “knowingly,” which resulted in endangerment to D.P.

As noted above, Cordell testified that she took the child to the emergency room because

of prolonged vomiting; however, according to the Department’s evidence, no signs of

violence or abuse were visible and the injuries were detected only after x-rays. Based on

an emergency order obtained by the Department, D.P. was removed from his mother’s

care while in the hospital and since then D.P. has not been under Cordell’s care or control,

thereby precluding a determination of knowing endangerment after the child was taken to

the hospital. Further, although maternal instincts are strong, without evidence of Cordell’s

level of medical and infant care training and no visible injuries, knowledge that D.P. had

been injured before Cordell took him to the emergency room cannot be based on surmise.

8 Moreover, the Department also acknowledges in its brief that there is “little

evidence that the Appellant placed the child in conditions endangering” the child’s physical

or emotional well-being. It is undisputed that D.P. sustained injuries to his ribs, but there

is no evidence showing how, when, nor by whom the child was injured. Although the

evidence suggests that the list of persons who could have caused the injuries can be

narrowed to Cordell, Podzemny, or the babysitter, where, as here, circumstances are

consistent with either of two or more facts and nothing shows that one is more probable

than the other, none may be inferred. Roth, 994 S.W.2d at 197. Resultantly, absent

knowledge of who injured D.P., a finding that Cordell knowingly placed or allowed him to

be subject to an unsafe environment or circumstances is not supported by clear and

convincing evidence. After reviewing all the evidence and applying the appropriate

standard of review, we conclude the evidence supporting termination of Cordell’s parental

rights has not been demonstrated by clear and convincing evidence and is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust. Point of error

two is sustained.

Accordingly, the judgment is reversed and the cause is remanded to the trial court

for a new trial.

Don H. Reavis Justice

Publish.

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