Trevino v. DEPT. OF PROTECT. & REG. SERV.

893 S.W.2d 243
CourtCourt of Appeals of Texas
DecidedFebruary 8, 1995
Docket03-93-00470-CV
StatusPublished
Cited by17 cases

This text of 893 S.W.2d 243 (Trevino v. DEPT. OF PROTECT. & REG. SERV.) 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
Trevino v. DEPT. OF PROTECT. & REG. SERV., 893 S.W.2d 243 (Tex. Ct. App. 1995).

Opinion

893 S.W.2d 243 (1995)

Antonio TREVINO, Appellant
v.
The TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.

No. 03-93-00470-CV.

Court of Appeals of Texas, Austin.

February 8, 1995.

*246 Gary A. Calabrese, Austin, signed brief for appellant.

Ronald Earle, Dist. Atty. and Robert Smith, Asst. Dist. Atty., Austin, signed brief, for appellee.

Before CARROLL, C.J., and KIDD and B.A. SMITH, JJ.

CARROLL, Chief Justice.

The Texas Department of Human Services[1] (the "Department"), appellee, brought a suit affecting the parent-child relationship to terminate the parental rights of appellant Antonio Trevino and his common-law wife, Christina Lopez. Pursuant to a jury verdict that appellant's parental rights should be terminated, the district court ordered the requested relief. See Tex.Fam.Code Ann. § 15.02 (West Supp.1995). We will affirm the trial-court judgment.

BACKGROUND

The Department brought a suit to terminate the parent-child relationship between appellant and his three young children, Josephine Lopez, Antonio Lopez (hereinafter "Tony"), and Michelle Trevino, on May 31, 1991. The Department took the children into protective custody because their mother, Christina Lopez, abused the two older children, Josephine and Tony, and abandoned them on the evening of May 28, 1991 on a public street in East Austin. At the time of the incident, appellant had been in prison for over two years.

Christina Lopez was a party to the termination suit, but she voluntarily relinquished her parental rights shortly before trial. The Department argued at trial that the relationship between appellant and his children should be terminated pursuant to section 15.02 of the Texas Family Code. Section 15.02 provides:

(a) [A] petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
. . . .
(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; or
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; ...
. . . .
(M) ... and in addition, the court further finds that
(2) termination is in the best interest of the child.

Tex.Fam.Code Ann. § 15.02. To support a trial court's judgment, the petitioner must prove that the parent engaged in conduct described in section 15.02(a)(1) and that it was in the best interest of the child to terminate the parental rights. The trial court has no authority to terminate a parent-child relationship solely because it would be in the best interest of the child. Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex.1976).

The case was tried before a jury, which rendered a verdict in favor of the Department. Accordingly, the trial court signed a final decree terminating appellant's parental rights to his children. In its final decree of termination, the court found that appellant knowingly placed or knowingly allowed the *247 children to remain in conditions or surroundings that endangered their physical or emotional well-being, that appellant engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being, and that termination was in the best interest of the children.

DISCUSSION

By four points of error, appellant contends that the district court erred by: (1) informing the venire panel of the nature of appellant's prior conviction and incarceration for serious bodily injury to a child; (2) admitting evidence of the nature of appellant's conviction for serious bodily injury to a child, the judgment and underlying facts of the conviction, and the confession by appellant that resulted in the conviction; (3) basing its judgment on legally and factually insufficient evidence supporting the jury's answer that appellant's parental rights should be terminated; and (4) failing to find that appellant should be named possessory conservator of the children as such failure was contrary to the overwhelming weight and preponderance of the evidence.

A. Appellant's Prior Conviction and Incarceration

In July 1989, appellant was arrested for causing injury that resulted in the death of a child named Leon Lopez, the nephew of appellant's wife, who had been entrusted to the care of appellant and his wife. Appellant was convicted of a first-degree felony for serious bodily injury to a child and sentenced to life. At the time the Department filed its petition to terminate the parent-child relationship, appellant was imprisoned at the Texas Department of Corrections, where he continues to reside. In two points of error, appellant contends that the court erred in revealing the nature of his conviction and incarceration to the venire panel and in admitting evidence of such during the trial.

We first address appellant's second point of error. Appellant objected to the admissibility of all evidence relating to the nature of his conviction and the reason for his incarceration, the judgment and underlying facts of his conviction, and his signed confession on the grounds that such evidence was extremely inflammatory and irrelevant and that the prejudicial effect of the evidence outweighed any probative value. The trial court overruled appellant's objections and allowed him a running objection to all such evidence. The court then allowed the Department to call appellant as an adverse witness, elicit information concerning his conviction, and offer into evidence appellant's signed confession, which describes in detail the events leading to the death of young Leon.[2]

The Department sued to terminate appellant's parental rights under subsections (1)(D) and (1)(E) of section 15.02(a), which requires the Department to prove by clear and convincing evidence that appellant's acts or omissions endangered the children.[3] The supreme court has interpreted endanger for purposes of section 15.02: "While we agree that `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 actually suffers injury." Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

Evidence of imprisonment alone is not sufficient grounds to support the inference that the parent's conduct endangered the children. However, "if the evidence, including the imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of a child, a finding under section 15.02(a)(1)(E) is supportable." Id. at 534; see also Harris v. Herbers,

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893 S.W.2d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trevino-v-dept-of-protect-reg-serv-texapp-1995.