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In re J.L.J.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 23, 2017

IN THE INTEREST OF J.L.J., J.L., D.D.J, AND R.P., MINOR CHILDREN

         On appeal from the County Court at Law No. 5 of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Benavides and Hinojosa

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice

         By two issues, which we address as one, appellant I.P. [1] challenges the termination of her parental rights in regards to J.L.J., J.L., D.D.J., and R.P. ("children"). We affirm.

         I. Background

         In October 2014, the Texas Department of Family and Protective Services ("the Department") filed its original petition for protection, conservatorship, and for termination of I.P.'s parental rights over her four children, J.L.J., J.L., D.D.J., and R.P., and their respective fathers. The petition was in response to I.P.'s testing positive for cocaine at the birth of R.P., her youngest child.

         I.P. stated in an interview to the Department that she had used cocaine a few days before R.P.'s birth. I.P. also stated she had used cocaine with D.D., D.D.J.'s father. I.P. had allowed J.L.J. and J.L. to visit their father knowing he has a history with firearms, domestic violence, and drug use. The Department was concerned that I.P. was an inappropriate caregiver and petitioned to remove the children.

         J.L.J. and J.L. were placed in the care of their paternal grandmother, E.R. D.D.J. was placed in the care of his parental grandmother, S.D. R.P. was initially placed in foster care upon his release from the hospital, but later, I.P.'s brother, D.P. and his family were approved for R.P.'s placement.

         The Department worked towards reunifying I.P. and her children. I.P. slowly complied with many of the conditions set forth by the Department but never achieved full compliance. In October 2015, the trial court ordered the children be placed back with I.P. However, in December 2015, I.P. was arrested for possession of a controlled substance and child abandonment charges. The incident involved I.P. calling police when she heard rocks being thrown at her apartment window. When police arrived, I.P. was incoherent on the couch and suspected drug paraphernalia was found within the reach of the children. I.P. was arrested and the Department was called out. The children were subsequently returned to their former placements.

         A bench trial commenced on June 13, 2016, and was continued until August 26, 2016. There, witnesses from the Department as well as the guardian ad litem for the children testified. E.R. and I.P. also testified. All witnesses but I.P. recommended termination of parental rights. Although I.P. had plans to change her life and provide for the children, the trial court ultimately concluded that termination of I.P.'s parental rights was in the best interest of the children and fell under provisions in the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(D), (E), (N), (O), & (P) (West, Westlaw through 2015 R.S.). The trial court also terminated the rights of the fathers of J.L.J, J.L. and R.P. D.D.J.'s father, D.D., was a party to the trial court proceeding and was given custody of D.D.J. following the bench trial. This appeal followed.

         II. Termination of Parental Rights

         By two issues which we address as one, I.P. challenges the legal and factual sufficiency of the evidence used to terminate her parental rights.

         A. Standard of Review

         "Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties and powers normally existing between them." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). While parental rights are of a constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

         A court may order the termination of a parent-child relationship if it shown by clear and convincing evidence that a parent has met at least one of the statutory factors listed in the family code, coupled with an additional finding by clear and convincing evidence that termination is in the child's best interest. See Tex. Fam. Code. Ann. § 161.001(b)(1)-(2); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental termination and that one act or omission of conduct satisfies the first prong); In re E.M.N., 221 S.W.3d 815, 820-21 (Tex. App.-Fort Worth 2007, no pet.). "Clear and convincing evidence" is defined as 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 (West, Westlaw through 2015 R.S.). "This intermediate standard falls between the preponderance of the evidence standard in civil proceedings and the reasonable doubt standard of criminal proceedings." In re L.J.N., 329 S.W.3d at 671. This heightened standard of review is mandated not only by the family code, see Tex. Fam. Code Ann. § 161.001, but also the Due Process Clause of the United States Constitution. In re E. N.C. , 384 S.W.3d 796, 805 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). "It is our obligation to strictly scrutinize termination proceedings and strictly construe the statute in favor of the parent." In re L.J.N., 329 S.W.3d at 673.

         In a legal sufficiency review, we look at all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. Furthermore, we must assume that the factfinder resolved disputed facts in favor of its findings if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient and render judgment in favor of the parent. Id.

         We review challenges to the factual sufficiency of the evidence in a termination proceeding by giving "due deference to a [trial court's] factfindings, " and we do not "supplant the [factfinder's] judgment" with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curium). In our review, we should "inquire 'whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [] allegations'" from the entire record. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. However, in applying this standard, we must not be so rigorous in our analysis that the only fact findings that could withstand review are those established beyond a reasonable doubt. Id.

         B. Applicable Law

         I.P.'s rights were terminated under Texas Family Code section 161.001 (D), (E), (N), (O), and (P) and in the best interest of the children. See Tex. Fam. Code Ann. § 161.001.

         1. Section 161.001 (D) and (E)

         Family Code section 161.001(D) states: "that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." See id. at (D). Section (E) states: "that the parent 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." See id. at (E). As these grounds address similar requirements, we will address them together.

         "To endanger means to expose to loss or injury, to jeopardize." In re E.M., 494 S.W.3d 209, 221 (Tex. App.-Waco 2015, pet. ref'd). "Both subsections thus require 'endangerment'-that is jeopardizing the child's physical or emotional well-being." In reR.D., 955 S.W.2d 364, 367 (Tex. App.-San Antonio 1997, pet. ref'd.) "But they differ as to the cause of the endangerment." Id. "Under both subsections, therefore, termination must rest upon parental conduct. But subsection D permits ...


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