In the Interest of A.L., a child--Appeal from 326th District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

In the Interest of A.L., a child

No. 11-04-00276-CV -- Appeal from Taylor County

The jury found that Audrey Ellsworth s parental rights as to A.L. should be terminated. We affirm.

To terminate appellant s parental rights, the jury had to find by clear and convincing evidence that appellant:

[1] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child [as stated in TEX. FAM. CODE ANN. 161.001(1)(D) (Vernon 2002)]; or

[2] 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 [as stated in TEX. FAM. CODE ANN. 161.001(1)(E) (Vernon 2002)]; or

[3] had her parent-child relationship terminated with respect to another child based on a finding that the mother s conduct was in violation of [Section 161.001(1)(D) and (E)] or substantially equivalent provisions of the law of another state [as stated in TEX. FAM. CODE ANN. 161.001(1)(M) (Vernon 2002)].

The jury also had to find that termination of the parent-child relationship between appellant and A.L. was in the best interest of the child. TEX. FAM. CODE ANN. 161.001(2) (Vernon 2002).

Appellant raises three points of error on appeal. Appellant s first point of error is that the evidence was legally and factually insufficient to support the jury s finding that appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. Appellant s second point of error is that the evidence was legally and factually insufficient to support the jury s finding that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. Appellant s third point of error is that the evidence was legally and factually insufficient to support the jury s finding that termination of the parent-child relationship between appellant and the child is in the best interest of the child.

Background Facts

Appellant began using drugs in 1986. She stated that, even though she knew she was in her second trimester with A.L., she used cocaine. Appellant gave birth to A.L., her sixth child, while she was incarcerated. Appellant released A.L. to Robert Lane, the presumed father. It was later determined that Lane was not A.L. s father.

Child Protective Services (CPS) was contacted after Lane took A.L. to the doctor for an ear infection and the doctor noticed a large bruise on A.L. s forehead. The doctor asked Lane for an explanation; however, Lane s explanation was inconsistent with the injury. Lane was asked to leave A.L. with his sister until CPS finished its investigation. CPS received multiple calls stating that Lane had picked up A.L. from his sister s house. CPS stepped in and removed A.L. from Lane s care. A.L. was approximately four months old.

When A.L. was first placed in foster care, the child s behavior was not that of a normal four-month-old child. A.L. would have screaming fits, just high-pitched screams, and become real rigid and inconsolable and would not want to be held.

Appellant stated that she had enrolled in several drug and alcohol programs while incarcerated. She stated that she was on the fifth step of a twelve-step program. However when asked what the fifth step was, she could not remember. When asked what any of the twelve steps were, she was unable to recall any of them. Appellant testified that she had bettered herself by obtaining her GED and attending trade classes. However, appellant completed her GED in 1989 and has since been placed back in jail for various parole violations. Appellant was currently incarcerated; and, unless parole is granted, she will be incarcerated until February 11, 2006.

Since A.L. has been with her foster family, the tantrums have stopped. A.L. was now behaving like a normal two-year-old.

Standard of Review

A court may order involuntary termination of parental rights only if the court finds that (1) a parent has committed a predicate act or omission harmful to the child and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. 161.001 (Vernon 2002); In re B.L.D., 113 S.W.3d 340, 353-54 (Tex.2003). The court must ensure that these findings are made by clear and convincing evidence. In re B.L.D., supra. Any complaint that the evidence is legally or factually insufficient to support the findings necessary for termination is analyzed by a heightened standard of appellate review. In re B.L.D., supra.

In a legal sufficiency review, a court should look at all 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 256, 266 (Tex.2002). To give appropriate deference to the fact-finder s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. In re J.F.C., supra at 266. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. In re J.F.C., supra.

In a factual sufficiency review, a court of appeals must give due consideration to evidence that the fact-finder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17 (Tex.2002). In reviewing the factual sufficiency of the evidence, we determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the State s allegations. In re C.H., supra. A court of appeals should consider whether disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., supra at 256. If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., supra at 256.

Sufficiency of the Evidence

Section 161.001 allowed the jury to terminate appellant s parental rights based on any one of the three grounds, together with a finding that termination was in the best interest of the child. Appellant does not dispute that her parental rights were terminated as to her fifth child, L.P.O.E., on a finding that appellant s conduct was in violation of Section 161.001. The termination order was entered into evidence, and the jury was free to review the order.

The jury needed only one ground to terminate the parent-child relationship, in conjunction with the best interest of the child, not all three. However, we also find that the evidence was legally and factually sufficient to support a jury finding that appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child as stated in Section 161.001(1)(D).

Evidence of imprisonment shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). If the imprisonment displays a voluntary, deliberate, and conscious course of conduct, it qualifies as conduct that endangers the emotional well-being of the child. In the Interest of Guillory, 618 S.W.2d 948 (Tex.Civ.App. - Houston [1st Dist.] 1981, no writ). Appellant s pattern of drug abuse which resulted in her incarceration shows a voluntary course of conduct which endangered her children. Moreover, the record further shows that appellant left the children in the care of an individual whom she assumed used drugs.

We find that there is probative evidence to support a jury finding that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the children. We additionally find that the jury could reasonably form a firm belief or conviction about the truth of the State s allegation that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the children. Appellant s Points of Error Nos. 1 and 2 are overruled.

Appellant s third point of error is that the evidence was legally and factually insufficient to support the jury s finding that termination of the parent-child relationship between appellant and A.L. is in the best interest of A.L. TEX. FAM. CODE ANN. 153.002 (Vernon 2002) provides that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to a child. TEX. FAM. CODE ANN. 153.193 (Vernon 2002) provides that the terms of an order that imposes restrictions or limitations on a parent s right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.

The evidence at trial showed that appellant had been in and out of incarceration since 1989 and that appellant was currently incarcerated. Appellant further testified that she began using drugs in 1986. She testified that she used cocaine during her pregnancy with A.L. Appellant stated that she knew she was in her second trimester of the pregnancy while she was using cocaine. A.L. was born while appellant was incarcerated. Appellant returned home when released and continued to abuse alcohol and drugs.

Appellant released A.L. to Lane, the man she thought was A.L. s father. Appellant testified that she did not actually know whether he used drugs or not, but she assumed he did.

Upon reviewing the entire trial record, there is ample evidence that appellant engaged in a pattern of behavior detrimental to the parent-child relationship. A reasonable trier of fact could have formed a firm belief or conviction that it was in the best interest of A.L. to terminate the parent-child relationship with appellant. After giving due consideration to the evidence that the trier of fact could reasonably have found to be clear and convincing, we find that the evidence is factually sufficient. The disputed evidence is not so significant that it would interfere with a reasonable trier of fact s firm belief or conviction that it was in the best interest of A.L. to terminate the parent-child relationship with appellant. Appellant s third point of error is overruled.

This Court s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

August 11, 2005

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Wright, J., and McCall, J.