Michelle Vasquez v. Department of Family and Protective Services--Appeal from 314th District Court of Harris County

Opinion issued December 30, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00751-CV

MICHELLE LYNN VASQUEZ, Appellant

V.

TEXAS DEPARTMENT OF PROTECTIVE & REGULATORY SERVICES, Appellee

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 2004-00430J

DISSENTING OPINION

Because the majority errs in holding that the evidence in this case is legally sufficient to support a finding, under Texas Family Code section 161.001(1)(E), // that appellant, Michelle Lynn Vasquez, engaged in conduct which endangered the physical or emotional well-being of her son, Z.M., I respectfully dissent.

The Issue Presented

In her first issue, Vasquez argues that the trial court erred in terminating her parental rights to Z.M. because there is no evidence in the record to support a finding, under section 161.001(1)(E), that she had endangered the physical or emotional well being of Z.M.

In response, the Texas Department of Protective and Regulatory Services ( TDPRS ) concedes that the primary conduct at issue in this case is the evidence of . . . Vasquez s illegal drug use. It emphasizes that Vasquez admitted that M.D.V., another one of her children born prior to Z.M., had marijuana in her system when she was born and that Vasquez began smoking marijuana again within three months of M.D.V. s birth. TDPRS then argues

What is most critical, however, is that after the Agency had already worked with Ms. Vasquez from November of 2002, including after an intensive family worker provided her one and one services and returned M.D.V. to her care, Ms. Vasquez admitted she relapsed back into illegal drug use in November of 2003, when Z.M. was only about 4 months old.

. . . .

Ms. Vasquez s deliberate and voluntary decision to continue her conduct of illegal drug use was dangerous to Z.M., because it exposed Z.M. to the possibility that her supervision would be subject to a parent impaired in judgment by drug use and also raised the possibility that the parent could be incarcerated for the crime of using illegal drugs. Ms. Vasquez s drug use endangered her child for purposes of a finding under subsection (E).

(Emphasis added). In fact, the record reveals that Vasquez admitted that she had a week-long relapse, using marijuana, // in November 2003.

Thus, the issue squarely presented to this Court, and argued by the parties, is whether Vasquez s week-long relapse of marijuana use in November of 2003 amounted to conduct that endangered Z.M. for purposes of the trial court s finding under section 161.001(1)(E). Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2005). As a matter of law, the mere possibility that Vasquez s supervision of Z.M. might have been impaired and the mere possibility that she could have been incarcerated for her week-long use of marijuana in November of 2003 is not enough to forever terminate her parental rights with respect to Z.M.

Standard of ReviewThe United States Supreme Court has long recognized that a parent s right to the companionship, care, custody, and management of his or her children is a constitutional interest far more precious than any property right. Santosky v. Kramer, 455 U.S. 745, 758 59, 102 S. Ct. 1388, 1397 (1982). In fact, the Supreme Court has emphasized that the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has also concluded that this natural parental right is essential, a basic civil right of man, and far more precious than property rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. Id.

A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child s right to inherit. Id. Therefore, the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent s rights. Id. (citing Santosky, 455 U.S. at 747, 102 S. Ct. at 1391; Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). Clear and convincing evidence is 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 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because termination findings must be based upon clear and convincing evidence, not simply a preponderance of the evidence, the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264 66. Instead, both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof. Id. at 265 66. With respect to a legal sufficiency point, we 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. Id. at 266.

Endangerment

In proceedings to terminate the parent-child relationship brought under section 161.001, TDPRS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated under subsection (1) of the statute and that termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001. Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Under section 161.001(1)(E), a court may order termination of the parent-child relationship only if it finds by clear and convincing evidence that a parent has engaged in conduct . . . which endangers the physical or emotional well-being of the child. Tex. Fam. Code Ann. 161.001(1)(E) (emphasis added).

In support of its argument that Vasquez s drug use endangered [Z.M.] for purposes of a finding under subsection (E), TDPRS relies on In re U.P., 105 S.W.3d 222 (Tex. App. Houston [14th Dist.] 2003, pet. denied); Robinson v. Texas Department of Protective and Regulatory Services, 89 S.W.3d 679 (Tex. App. Houston [1st Dist.] 2002, no pet.); and In re W.A.B., 979 S.W.2d 804 (Tex. App. Houston [14th Dist.] 1998, pet. denied). However, each of these cases is inapplicable to the facts before us.

The court in U.P. held that evidence that a parent provided a controlled substance to the mother while the child was in utero, resulting in health problems emanating solely from the presence of that substance in the child s blood during gestation, is clear and convincing evidence of conduct endangering the physical well- being of a child under Family Code section 161.001(1)(E). 105 S.W.3d at 236. The court also held that evidence establishing that the parent had been arrested and incarcerated for one year for selling narcotics, resulting in the child s not knowing either of her biological parents, was legally and factually sufficient to support the trial court s finding of endangerment to the child s emotional well-being. Id.

In Robinson, a mother was arrested for the offense of possession of cocaine and placed on community supervision for three years. 89 S.W.3d at 682. The mother signed a family service plan with TDPRS, agreeing to avoid criminal activity and submit to drug tests. Id. However, while on community supervision, the mother tested positive for cocaine use, and, at that time, was pregnant. Id. The criminal district court revoked the mother s community supervision and she served three months in jail. Id. This Court stated that the mother s testimony to her drug problems ceasing within two months before her trial [did] not controvert evidence that [her] illegal drug activity [had] been ongoing for 20 years. Id. at 687. We held that the evidence was factually sufficient to support a finding that the mother endangered her children s emotional well-being and that her use of narcotics during her pregnancy could be considered endangering a child under section 161.001(1)(E). Id. at 687 & n.9.

In W.A.B., the court held that a mother s criminal history, imprisonment, and illegal drug use during and after her pregnancy constitute[d] a basis for termination of her parental rights under section 161.001(1)(E). 979 S.W.2d at 807 (emphasis added).

In contrast to these cases, there is no evidence in the record before us that Vasquez had ever been arrested for or had used narcotics while pregnant with Z.M. Rather than discuss the cases actually relied upon by TDPRS in support of its argument, the majority, citing In the Interest of M.D.V., No. 14-04-00463-CV, 2005 WL 2787006 (Tex. App. Houston [14th Dist.] Oct. 27, 2005, no pet. h.) (not designated for publication), reaches the following result:

Despite there being no direct evidence of appellant s drug use or neglect actually injuring Z.M., TDPRS presented evidence that appellant engaged in a course of conduct that endangered Z.M. s physical and emotional well-being.

However, although M.D.V. concerns Z.M. s sibling, it is just as inapplicable as U.P., Robinson, and W.A.B. In rejecting Vasquez s argument that her drug use did not endanger M.D.V., the court in M.D.V. emphasized

To the contrary, appellant admitted using marijuana and illegal prescription drugs while she was pregnant with M.D.V. A mother s use of drugs during pregnancy may be conduct which endangers the physical and emotional well-being of the child. . . . Here, appellant s drug use did physically harm M.D.V. because she was born with marijuana in her system. Nonetheless, appellant suggests M.D.V. was not harmed because there is no evidence of any resulting medical condition. However, we reject the suggestion that a baby born with the abnormal condition of marijuana in her system has not been harmed simply because there is no evidence of further medical effects. Regardless, the endangering act need not cause actual injury to the child; it is sufficient that the act jeopardizes or exposes the child to loss or injury. . . . Here, appellant s drug use while pregnant endangered M.D.V. because she was exposed to the possibility of being born with adverse medical conditions.

M.D.V., 2005 WL 2787006, at *3. Z.M. was born two years after M.D.V., and there is no evidence that Vasquez used marijuana or any other narcotics while she was pregnant with Z.M.

Nevertheless, without reference to any pertinent dates, the majority summarizes the evidence in support of its conclusion as follows:

(1) a continued pattern of drug use without regard for the effects that it had on the children, including one child s having tested positive for drugs at birth and the appearance of appellant s having been high while caring for the children, including Z.M., as noted by a case worker during visits to the home;

(2) appellant s failure to remain drug-free while under TDPRS s supervision, knowing that such conduct could place her children, including Z.M., at risk; and

(3) the case worker s observation of incidents indicating appellant s negligent supervision (Z.M. s being left unattended near a filled bathtub with another child in the tub and M.R.M. s exiting the home into high-traffic areas), without appellant s showing a willingness to take corrective measures, such as child-proofing the home.

Although this summary is based, in large part, on Vasquez s trial testimony, a review of the specific evidence, in the context of the pertinent dates, reveals that there is no evidence at all to support the trial court s finding that Vasquez engaged in conduct that endangered Z.M.

Z.M. was born on July 9, 2003, and the original petition to terminate Vazquez s parental relationship with this child was filed on January 16, 2004. Prior to this time period, Vazquez agreed to give temporary custody of her three other children to TDPRS. From August 2003 to January 2004, Vasquez worked with a TDPRS caseworker to bring her other three children back into her home. During this time period, the only children living with Vasquez were Z.M. and an older child who was returned to Vasquez in September 2003.

Almost all of the incidents to which the majority refers in its above summary involved Vasquez s other children and occurred prior to Z.M. s birth. In regard to the majority s specific reference that Vasquez left Z.M. unattended near a filled bathtub, a TDPRS caseworker actually testified that, when she went to Vasquez s home at an unspecified date, Vasquez was in the dining area on the phone and . . . [another child] was in a tub filled with water and [Z.M.] was right by the tub in an infant carrier, infant seat. The caseworker made no reference as to the size of the apartment, where the bathroom was in relation to the dining area of the apartment, or how long Z.M. was left unattended when Vasquez opened the door for the caseworker.

In regard to her continued pattern of drug use, Vasquez, when asked during her trial testimony taken on April 1 and 2, 2004, if she had ever used cocaine, stated that she had [i]n the past . . . years ago . . . not very often. She also admitted that, three years ago, she had used Valium. Moreover, Vasquez conceded that, during this time, three years ago, she used marijuana like every evening practically. She explained that, after she put her three children to sleep, she would smoke marijuana on her porch. After intervention, Vasquez completed parenting classes and inpatient and outpatient treatment for her drug abuse. She conceded, however, that she had a relapse in November 2003 by using marijuana for approximately one week and, subsequently, tested positive for marijuana use. When pressed as to whether she still [had] a drug problem, Vasquez explained Well honestly, ma am, regardless of what may be said or done, a drug, a drug problem is an addiction. It s something that will never go away. Vasquez denied ever using marijuana in the presence of her children, and there is no evidence in the record to the contrary.

This evidence is legally insufficient to support the trial court s finding that Vazquez engaged in conduct . . . which endangered the physical or emotional well-being of Z.M. Contrary to TDPRS s argument, endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment. Boyd, 727 S.W.2d at 533. Rather, it means to actually expose to loss or injury; to jeopardize. Id. The conduct must pose a real threat of injury or harm. TDPRS s argument that Vasquez s use of marijuana was dangerous to Z.M., because it exposed Z.M. to the possibility that her supervision would be subject to a parent impaired in judgment by drug use and also raised the possibility that the parent could be incarcerated for the crime of using illegal drugs necessarily fails. Noting that mere imprisonment, alone, is not conduct endangering a child, the Fort Worth Court of Appeals recently held that evidence that a parent s conduct in taking . . . methamphetamines that resulted in [the parent s] arrest and imprisonment was legally insufficient to support a finding that the parent endangered his child s physical or emotional well-being under section 161.001(1)(E). In the Interest of D.J.J., No. 2-04-374-CV, 2005 WL 2472064, at *4 (Tex. App. Fort Worth Oct. 6, 2005, no pet.). The court noted that there was no evidence that the parent s use of narcotics created an environment that endangered the child s physical or emotional well-being. Id.

Here, likewise, there is simply no evidence to support the majority s surmise that Vasquez s use of marijuana for one week in November 2003 led to any negligent supervision of Z.M. Moreover, the fact that a parent has failed to childproof her home or, on one single occasion, placed her child right by a tub in an infant carrier and left the child to answer a knock at the door is not evidence that the parent actually endangered the child s physical well-being.

The only pertinent evidence in regard to Z.M. about Vasquez s narcotics use is that Vazquez used marijuana for approximately one week in November 2003. There is absolutely no evidence in the record to support an inference that Vasquez used marijuana in the presence of Z.M. or that Z.M. was even in Vasquez s home at anytime that she used marijuana that week. Thus, there is no evidence that Vasquez s use of marijuana constituted a real threat of injury or harm to Z.M.

Finally, it must be noted that section 161.001(1)(P) provides that a court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that a parent has used a controlled substance . . . in a manner that endangered the health and safety of a child and (1) failed to complete a court-ordered substance abuse treatment program, or (2) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance. Tex. Fam. Code Ann. 161.001(1)(P) (Vernon Supp. 2005) (emphasis added). Subsection (1)(P) clearly provides for circumstances involving the use of controlled substances in a manner that endangers the health and safety of children. The majority s holding allows TDPRS to ignore subsection (1)(P) s additional requirement that it prove that a parent either failed to complete a court-ordered substance abuse program or continued to abuse a controlled substance after completing such a program. To require less proof for circumstances involving the use of controlled substances under subsection (1)(E) renders subsection (1)(P) meaningless.

Conclusion

TDPRS did not present any evidence of any effect on Z.M. of Vasquez s week-long use of marijuana in November 2003. In fact, it presented no evidence that Z.M. was present, or even in the same home, when Vazquez relapsed. Moreover, there is no evidence that Vasquez s use of marijuana caused her to fail to childproof her home or place Z.M. right by a tub in an infant carrier and leave Z.M. to answer a knock at the door, or that this conduct constituted a real threat of injury or harm to Z.M.

The focus of subsection (1)(E) is clearly on conduct that actually endangers the well-being of the child. Here, strict scrutiny of the record, with subsection (1)(E) strictly construed in favor of Vasquez, readily reveals that there is no evidence to support the trial court s finding that Vasquez engaged in conduct which endangered the physical or emotional well-being of Z.M. Accordingly, Vasquez s first issue should be sustained and the judgment should be reversed and rendered in her favor.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.

Justice Jennings, dissenting.