Linda Tristan and Moris Aviles v. Texas Department of Protective and Regulatory Services

• Court: Court of Appeals of Texas
• Decided: November 20, 1996
• Docket: 03-96-00326-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00326-CV

Linda Tristan and Moris Aviles, Appellants

v.

Texas Department of Protective and Regulatory Services, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. 90-0720, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

PER CURIAM

This is a parental termination case. Appellee Texas Department of Protective and Regulatory Services ("the Department") filed a petition to terminate the parental rights of appellants Linda Tristan and Moris Aviles, to their minor son, M.T. Following a hearing, the trial court found by clear and convincing evidence that Linda and Moris engaged in conduct that endangered their child's physical and emotional well-being. The trial court also found that termination was in the best interest of the child and appointed the Department permanent managing conservator. See Tex. Fam. Code Ann. § 161.001 (West 1996). Linda and Moris assert a single point of error urging that the evidence is insufficient to establish the statutory grounds for termination. We will affirm the decree of termination.

PROCEDURAL HISTORY

A court may terminate a parent-child relationship if it finds that (1) the parent has engaged in any of the specific conduct set forth in the Family Code as grounds for termination; and (2) termination is in the child's best interest. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). On November 9 and November 16, 1995, hearings on the Department's petition for termination of the parental rights of Moris and Linda to their minor child, M.T. were held. A review of the record shows that the Department alleged in the disjunctive four of the possible fourteen statutory acts of misconduct and pleaded that it was in M.T.'s best interest for the parental rights of Moris and Linda to be terminated. See Tex. Fam. Code Ann. § 161.001(1)(C)(D)(E) & (L)(2).

On March 12, 1996, the court terminated the parent-child relationship between Linda and M.T. based on finding that she: (1) has been adjudicated criminally responsible for the serious injury of M.T.; (2) voluntarily left M.T. in the possession of another without providing adequate support and remained away for a period of at least six months; (3) knowingly placed or allowed M.T. to remain in conditions or surroundings that endangered his physical or emotional well-being; (4) engaged in conduct or knowingly placed M.T. with persons who engaged in conduct that endangered his physical or emotional well-being; and (5) that termination was in the best interest of M.T. See Tex. Fam. Code Ann. § 161.001(1)(C)(D)(E) & (L)(2); D.O. v. Texas Dep't Human Servs., 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ); Fite v. Nelson, 869 S.W.2d 603 (Tex. App.--Houston [14th Dist.] 1994, no writ). Similarly the court found clear and convincing evidence to support the termination of Moris' parental rights based on finding that he committed three of the four alleged acts of misconduct and that termination of his parental rights would be in the best interest of the child. On appeal, Linda and Moris assert that the record fails to sufficiently establish that they committed the allegations levelled against them. Moris specifically complains that the evidence failed to establish by clear and convincing evidence that he was adjudicated to be criminally responsible for the injuries to M.T.

A petition requesting termination of the parent-child relationship may be granted if the court finds that the parent has engaged in any one of the statutorily enumerated acts and that termination is in the best interest of the child. Hence we conclude that it is irrelevant that the Department did not prove all of the alleged acts of misconduct with regard to both parents. Tex. Fam. Code Ann. § 161.001; D.O., 851 S.W.2d 351 at 353.

Moreover, our review of the record reveals that the court did not find that Moris had been adjudicated for any criminal acts against the child. The Department's allegations and the court's findings with regard to Moris were grounded, in part, on the fact that at times during the course of misconduct by Linda, Moris resided in the home as a passive perpetrator who was aware of Linda's acts but failed to provide protection for M.T. See In re H.W.E., 613 S.W.2d 71 (Tex. App.--Fort Worth 1981, no writ) (where mother is aware of and actually observed abuse committed upon child by father, parental rights were properly terminated). We now turn to the sufficiency of the evidence to uphold the findings of the trial court.

STANDARD OF REVIEW

Linda and Morris assert that the trial court erred in finding clear and convincing evidence that their parental rights should be terminated. The Department had the burden to prove the elements necessary for termination by clear and convincing evidence. In re G. M., 596 S.W.2d 846, 847 (Tex. 1980) (function of standard is to instruct the fact-finder concerning the degree of confidence society thinks it should have in correctness of factual conclusions). The clear and convincing standard of proof requires "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." In re G. M., 596 S.W.2d at 847.

When reviewing a jury verdict to determine the factual sufficiency of the evidence to support a finding on which the appellee had the burden of proof at trial, we must consider and weigh all the evidence and should set aside the judgment only if the evidence is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Federal Deposit Ins. Corp. v. Golden Imports, Inc., 859 S.W.2d 635, 640 (Tex. App.--Houston [1st Dist.] 1993, no writ). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991). The clear and convincing standard of proof required to terminate parental rights does not alter the appellate standard of review. State v. Turner, 556 S.W.2d 563, 565 (Tex. 1977). Because no written findings of fact or conclusions of law were filed, it is implied that the trial court made all of the findings necessary to support its judgment. Wolford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

CONDITIONS AND CONDUCT THAT ENDANGERED THE CHILD

The trial court found by clear and convincing evidence that Linda and Moris both committed three of the four alleged acts of misconduct and that termination of their parental rights was in the best interest of M.T. We will review the evidence.

On September 4, 1990, the Department received a referral regarding abuse and neglect of M.T. The child was diagnosed as having "failure to thrive" syndrome, a bruise on the bridge of his nose, and a healing fractured left arm. Following an investigation by the Department which revealed that the child had suffered other questionable injuries while in the home, in-home services were provided to the parents. ⁽¹⁾

On October 6, 1990, M.T. sustained a spiral fracture to his right leg. At this juncture, the Department filed a petition for temporary managing conservatorship and sought an order for emergency protection of the child. The petition was granted and M.T. was placed in foster care while his parents participated in a family service plan developed by the Department. On February, 1, 1991, the Department filed charges against Linda alleging that she knowingly and intentionally engaged in conduct that caused serious physical deficiency and serious bodily injury to M.T. On May 13, 1991, Linda was sentenced to deferred adjudication and ten years' probation.

In June 1993, following participation in the Department's plan, Linda and Moris regained possession of M.T. However, he only remained with them until October 8 of that year, when the Department once again removed him to a foster home following acts of physical abuse by Linda. Following the removal, Delisse Sardina, a child protective services specialist from the Department, met with Moris and Linda. The couple informed her of their desire to relinquish their parental rights to M.T. Sardina provided them with affidavits of relinquishment to review and return to the Department. Later that month, however, Moris and Linda and their remaining children left the state without returning the affidavits or providing a forwarding address.

On June 16, 1994, Linda was arrested for the 1993 offense and for violating the terms of her deferred adjudication. She was convicted of (1) causing physical injury to M.T. during his visit with the family on October 8, 1993; (2) failing to report to her probation officer; (3) failing to complete the required community service; (4) and being in arrears on her probation fees. Linda's probation was revoked on September 7, 1994, and she was sentenced to thirty-six years' confinement in the Texas Department of Criminal Justice-Institutional Division, where she currently remains.

Our review of the record shows that at times during the course of Linda's acts of misconduct, she and Moris shared and resided in the same home and that Moris was aware of her abuse of M.T. Although he was present in the home, there is no evidence in the record that Moris acted to protect his son from the harm Linda inflicted. Further, although not in custody, Moris abandoned M.T. and failed to provide support for the child or contact the Department between October 1993 and December 1994.

Our review of the record reveals that a reasonable basis exists for the trial court's findings of misconduct. We hold that the evidence is factually sufficient to prove by clear and convincing evidence that Linda and Moris each engaged in the acts alleged and, further, that termination of their parental rights is in the best interest of their son.

CONCLUSION

Because there is sufficient evidence to support all four of the challenged findings that justify terminating Moris and Linda's parental rights to M.T., we affirm the trial court's decree of termination.

Before Justices Jones, Kidd and B. A. Smith

Affirmed

Filed: November 20, 1996

Do Not Publish

1.   For example in July 1989, M.T. was brought to Central Texas Medical Center in San Marcos with a second-degree burn on his hand.

HAT ENDANGERED THE CHILD

The trial court found by clear and convincing evidence that Linda and Moris both committed three of the four alleged acts of misconduct and that termination of their parental rights was in the best interest of M.T. We will review the evidence.

On September 4, 1990, the Department received a referral regarding abuse and neglect of M.T. The child was diagnosed as having "failure to thrive" syndrome, a bruise on the bridge of his nose, and a healing fractured left arm. Following an investigation by the Department which revealed that the child had suffered other questionable injuries while in the home, in-home services were provided to the parents. ⁽¹⁾

On October 6, 1990, M.T. sustained a spiral fracture to his right leg. At this juncture, the Department filed a petition for temporary managing conservatorship and sought an order for emergency protection of the child. The