In the Interest of L.S.R.

60 S.W.3d 376, 2001 Tex. App. LEXIS 8092
CourtCourt of Appeals of Texas
DecidedNovember 8, 2001
DocketNo. 2-00-324-CV
StatusPublished
Cited by18 cases

This text of 60 S.W.3d 376 (In the Interest of L.S.R.) 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 the Interest of L.S.R., 60 S.W.3d 376, 2001 Tex. App. LEXIS 8092 (Tex. Ct. App. 2001).

Opinion

OPINION

PER CURIAM.

J.R. and L.R. appeal from a judgment terminating their parental rights to their daughter L.S.R., a judgment based upon a jury verdict. In eleven issues, they contend that: (1) the trial court erred by admitting a certified record of J.R.’s deferred adjudication probation for the offense of indecency with a child; (2) there is no evidence or factually insufficient evidence to terminate J.R.’s parental rights under section 161.001(l)(L)(iv) of the Texas Family Code; and (3) the evidence supporting the other remaining grounds for termination is factually insufficient. We reform the trial court’s judgment and affirm as reformed.

Appellants urge in issue one that the trial court erred by admitting into evidence a certified record of J.R.’s deferred adjudication probation for indecen[378]*378cy with a child. Our record reflects that after counsel for appellants made certain objections, a redacted version of the record was offered. At that time, counsel for appellants indicated that there was no objection. Consequently, we hold that nothing is presented for review with respect to this issue. See Williams v. State, 834 S.W.2d 502, 507 (Tex.App.—Fort Worth 1992, pet. ref d). Appellants may not rely on the initial objection. See id. We overrule appellants’ contention in issue one.

Appellants contend in issue two that there is no evidence to terminate J.R.’s parental rights under section 161.001(l)(L)(iv) of the Texas Family Code. The burden of proof in an involuntary termination proceeding is clear and convincing evidence, which is that 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. See Swinney v. Mosher, 830 S.W.2d 187, 194 (Tex.App.—Fort Worth 1992, writ denied). In determining a no evidence point, we consider all of the evidence in the light most favorable to the party in whose favor the judgment has been rendered and indulge every reasonable inference from the evidence in that party’s favor. In re D.T., 34 S.W.3d 625, 630 (Tex.App.—Fort Worth 2000, pet. denied) (op. on reh’g). We will only sustain a contention of no evidence when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Swinney, 830 S.W.2d at 194.

Section 161.001(l)(L)(iv) provides, as a ground for termination, that one has:

(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:
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(iv) Section 21.11 (indecency with a child);
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Tex. Fam.Code Ann. § 161.001(l)(L)(iv) (Vernon Supp.2001).

In addition to a showing that J.R. had received deferred adjudication for the offense of indecency with a child, evidence was presented showing that the offense involved his four-year-old cousin, at a time when J.R. was sixteen. There was also evidence that J.R. had previously been treated for pedophilia. There was no showing that J.R.’s cousin suffered death or serious injury as a result of his conduct.

We hold that there is legally insufficient evidence to support this ground for termination. See Vidaurri v. Ensey, 58 S.W.3d 142, 143-48 (Tex.App.—Amarillo 2001, no pet. h.). The State urges that serious injury to a child may be inferred from proof of the conviction, relying on In re K.R., 22 S.W.3d 85, 88 (Tex.App.—Houston [14th Dist.] 2000, no pet.) (en banc op. on reh’g) and Segovia v. TDPRS, 979 S.W.2d 785, 787 (Tex.App.—Houston [14th Dist.] 1998, pet. denied). As the State candidly notes, in neither case did the appellant contend that the evidence was insufficient because of a lack of evidence of death or serious injury to the child victim. Contrary to the State’s argument, the statute requires that the defen[379]*379dant’s conduct must have caused death or serious injury to a child. While the conviction might be sufficient evidence of death or injury in those cases where death or serious injury to the child is an element of the offense, we hold that where death or serious injury is not an element of the offense, the conviction or deferred adjudication is not by itself sufficient evidence to support termination under section 161.001(l)(L)(iv). We sustain appellants’ contention as presented in issue two. In view of our determination of this issue, we need not consider their contention as presented in issue three.

Appellants contend in issues four through eleven that the evidence is factually insufficient to show that they knowingly placed or allowed the child to remain in conditions or surroundings that endangered her emotional or physical well-being; they engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child’s emotional or physical well being; their illness or deficiency, in all reasonable probability, would continue to render them unable to provide for the child’s needs until the child’s eighteenth birthday; and the termination of their parental rights was in the child’s best interest.

In making a factual sufficiency review, we must consider all of the evidence and determine if the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the trier of fact could not have reasonably concluded that there was a high probability that the conduct or endangerment of the child occurred or that termination was in the best interest of the child. In re D.T., 34 S.W.3d at 632.

Witnesses testified that the child had a broken arm and that appellants gave various explanations as to how she broke it. Carolyn McCloud, an investigator for Child Protective Services who investigated the injury to the child’s arm, reported that the home was very dirty; it had a foul odor; there were roaches and flies everywhere; and the kitchen was in very bad condition. The worker replaced the child’s walker because it would not stand up.

McCloud testified that the Appellants did not appear to watch or properly supervise the child. She said that whenever she went to the home the child was always in a crib, her walker, or a swing.

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Cite This Page — Counsel Stack

Bluebook (online)
60 S.W.3d 376, 2001 Tex. App. LEXIS 8092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-lsr-texapp-2001.