IN THE INTEREST OF A. C. AND J.M.C., MINOR CHILDREN--Appeal from 24th District Court of De Witt County

NUMBER 13-01-642-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

IN THE INTEREST OF A.C. AND J.M.C., MINOR CHILDREN

On appeal from the 24th District Court

of De Witt County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Castillo

This is an appeal from a judgment after a bench trial terminating the parental rights between appellant Tyree Lynn Cervantes (ACervantes@) and her child, A.C. In one issue, appellant asserts that the evidence presented to the trial court was factually insufficient to support the trial court=s finding that her parental rights should be terminated. We affirm.

Procedural History and Factual Background

Sometime in 1994, the Texas Department of Protective and Regulatory Services (ATDPRS@) first became involved with the Cervantes family. Two older children, not subjects of this suit, were then removed from the home and placed with relatives after Cervantes and her husband, Bobby Cervantes, left them alone. TDPRS again became involved with the family in 1998, when another child, J.M.C., was removed at birth due to Cervantes testing positive for cocaine at the time.[1]

On November 11, 1999, Cervantes gave birth to A.C., the child who is the subject of this appeal, while undergoing substance abuse treatment. TDPRS filed a suit affecting parent child relationship (ASAPCR@) on November 30, 1999,[2] alleging that Cervantes was not able to provide adequate care to A.C. Adue to the ongoing substance abuse problem.@ On the same day the petition was filed, the trial court entered emergency orders and appointed TDPRS temporary managing conservator of A.C.[3] On December 21, 1999, a full adversary hearing was held, pursuant to section 262.201of the family code, and both Cervantes and her husband appeared. TDPRS was continued as temporary managing conservator of A.C. In material part, the trial court order provides that:

19.1 TYREE CERVANTES is ORDERED, pursuant to Sec. 263.106, Tex. Fam. Code, to comply with each requirement set out in the Department=s original, or any amended, service plan during the pendency of this suit.

The order allowed A.C. to remain with Cervantes during her placement in a drug rehabilitation treatment center. The record reveals that the family service plans TDPRS generated required that Cervantes successfully complete all drug treatment programs and attend counseling.[4] In general, the goals of the TDPRS service plans in her case were that she demonstrate an ability to change the pattern or behavior that resulted in its intervention and an ability to stay away from a drug lifestyle.

At the termination hearing on January 8, 2001, after hearing evidence from caseworkers, CASA volunteers,[5] appellant=s pastor, and others, the trial court entered its order of termination, finding clear and convincing evidence that Cervantes violated sections 161.001(1)(D), (E), (O), and (P) of the Texas Family Code and that termination was in the best interest of A.C. See Tex. Fam. Code Ann. '161.001(1)(D),(E), (O) & (P) and 161.001(2)(Vernon Supp. 2002).

Standard of Review

In reviewing the factual sufficiency of the evidence, the court must consider and weigh all the evidence and should set aside the judgment only if it is so obviously weak or contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In the context of a termination of parental rights this will be found when: (1) the evidence is factually insufficient to support such a finding by clear and convincing evidence; or (2) a finding is so contrary to the great weight of contradicting evidence that no trier of fact could reasonably have found the evidence to be clear and convincing. In re L.R.M., 763 S.W.2d 64, 67 (Tex. App.BFort Worth 1989, no writ). We review a factual sufficiency issue in a bench trial using the same standard that we use in reviewing factual sufficiency following a jury verdict. K.C. Roofing Co., Inc. v. Abundis, 940 S.W.2d 375, 377 (Tex. App.BSan Antonio 1997, writ denied).

We note that Cervantes did not request findings of facts or conclusions of law. When findings of facts and conclusions of law are not requested and none are filed, we must affirm the judgment if we can uphold it on any legal theory that finds support in the evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984)(per curiam). In the case of a bench trial, a review of factual sufficiency involves reviewing the trial court=s findings of fact. When those findings of fact are missing, as they are in the present case, we will presume that the trial court found all fact questions in support of the judgment. IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997). We will affirm the trial court judgment on any legal theory that finds support in the pleadings and the evidence. Id.

Standard of Proof

A court may order the termination of the parent-child relationship if it finds clear and convincing evidence of two factors: (1) that the parent has violated one or more of the statutory grounds set forth in section 161.001(1) of the family code, and (2) that termination is in the best interest of the child as required under section 161.001(2) of the family code. Tex. Fam. Code Ann. '161.001(Vernon Supp. 2002). An order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides. Tex. Fam. Code Ann. '161.206(b) (Vernon 1996). Because the involuntary termination of parental rights interferes with fundamental constitutional rights, we must strictly scrutinize involuntary termination proceedings in favor of preserving the relationship. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). If the court finds grounds for termination of the parent-child relationship by clear and convincing evidence, it shall render an order terminating the parent-child relationship. Tex. Fam. Code Ann. '161.206(a) (Vernon 1996). The Aclear and convincing evidence@ standard of proof is required in all proceedings for involuntary termination of the parent child relationship. In re G.M., 596 S.W.2d at 847. AClear 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 about the truth of the allegations sought to be established. Tex. Fam. Code Ann. '101.007 (Vernon 1996). The clear and convincing standard is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d at 847. The clear and convincing standard of proof does not alter the appropriate sufficiency standard of appellate review.[6] In re A.D.E., 880 S.W.2d 241, 245 (Tex. App.BCorpus Christi 1994, no writ).

Analysis

By her sole issue, Cervantes asserts that the evidence was factually insufficient to support termination of her rights. She states that the evidence was not clear and convincing to show that she: (1) engaged in any acts since A.C.=s birth which endangered the child; (2) had placed the child in any circumstances that would endanger the child; (3) failed to comply with the court=s orders regarding the actions necessary to return the child to her; or (4) had failed to complete court-ordered substance abuse programs after having used a controlled substance in a manner that endangered her child=s health or safety.[7] She does not challenge the trial court=s finding that the termination was in the best interest of the child.

Considering appellant=s first argument, we observe that she mischaracterizes the standard of proof. The trial court was not required to find that appellant had engaged in any acts that endangered A.C. since her birth. The trial court was authorized to consider appellant=s actions before and after the child was born. In re D.M., 58 S.W.3d 801, 812 (Tex. App.BFort Worth 2001, no pet.); Dupree v. Tex. Dep=t of Protective and Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.BDallas 1995, no writ)(under predecessor statute). The use of drugs during pregnancy is itself conduct which endangers the physical and emotional well being of the child. In re W.A.B., 979 S.W.2d 804, 806 (Tex. App.BHouston [14th] 1998, pet. denied); Dupree, 907 S.W.2d at 84. To be relevant, the conduct does not have to have been directed at the child, nor must actual harm result to the child from the conduct. Dupree, 907 S.W.2d at 84. The cause of the danger to the child must be the parents' conduct, as evidenced not only by the parents' acts but also by the parents' omissions or failures to act. Id. at 83-84.

The record shows that Cervantes had been in drug rehabilitation programs six times since 1995, two of which were temporarily successful. The caseworker who made contact with Cervantes in 1994 testified that she used drugs at that time and that TDPRS had become involved because her two older children had been left alone. After Cervantes tested positive for cocaine in December 1998, the TDPRS removed her son J.M.C. from her possession because of her continued use of cocaine. At that time, Cervantes was pregnant with A.C. At one point, to pay for her $50 a day cocaine habit, Cervantes was prostituting herself while pregnant with A.C. Cervantes later entered a substance abuse treatment facility and was discharged as successful after about five months. The month after her release, Cervantes suffered a relapse and, at her request, was placed in another drug treatment program.[8] A.C. was born on November 11, 1999, while Cervantes was at the drug treatment facility and was allowed to remain with Cervantes there. In February 2000, Cervantes was released, and A.C., who was three months old at the time, was placed in foster care. Appellant denied any further drug use from June 25, 1999.

The TDPRS offered Cervantes weekly counseling, other Aafter care drug@ programs, and parenting classes, which she attended. In May 2000 and October 2000, the TDPRS was unaware of her whereabouts. During these periods, she missed counseling classes and services TDPRS provided. She also did not visit the child in foster care even though visits were scheduled. At one point, Cervantes was in jail for three weeks.[9] She also continued to have contact with Bobby Cervantes despite his drug problem.[10] Throughout its intervention, TDPRS offered her parenting classes, drug assessments, marital counseling, substance abuse counseling, group counseling, early childhood-step courses, treatment centers, psychological evaluations, Alcoholics Anonymous counseling, day care, family counseling, and after-care counseling. Despite such assistance, when Cervantes was asked at the termination hearing if she could take care of her children if returned to her, she answered, ANot at this time.@

We find that the evidence was factually sufficient to support the trial court=s decree severing the parental rights of Cervantes and her child, A.C. The record discloses clear and convincing evidence that she engaged in conduct which endangered the physical and emotional well-being of her child. Tex. Fam. Code Ann. '161.001(1)(E) (Vernon Supp. 2002). As we have found the evidence factually sufficient to sustain the trial court=s decision as to one of the grounds permitted under 161.001(1), we need not consider the sufficiency of the evidence to sustain the other grounds found by the court. Phillips v. Tex. Dep=t of Protective and Regulatory Servs., 25 S.W.3d 348, 359 (Tex. App.BAustin 2000, no pet.). As there was no challenge on appeal to the finding of the court under section 161.001(2) of the family code that the termination was in the best interest of the child, we likewise need not address that question. In re L.R.M., 763 S.W.2d at 68.

Conclusion

We overrule appellant=s sole issue and affirm the judgment of the trial court terminating the parent-child relationship.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 23rd day of May, 2002.

1 A suit affecting parent-child relationship, docketed as cause number 98-12-17,915, and relating to J.M.C., was at one time consolidated with the suit relating to A.C. However, that portion of the suit was subsequently dismissed and appellant raises no issues in this appeal as to the trial court=s actions in relation to J.M.C.

2 On November 29, 2000, the trial court entered an order extending its jurisdiction and dismissal date pursuant to section 263.401(b)(1). Tex. Fam. Code Ann. '263.401(b)(1)(Vernon Supp. 2002).

3Since removal from Cervantes=s possession, A.C., together with J.M.C., has been in the foster home of a couple, who wish to adopt A.C. The couple have had her since she was three months old. A.C. has Aspecial needs@and has a heel condition that requires a brace on her leg.

4The family service plans contained in the record were filed on January 12, 2000, May 23, 2000, September 18, 2000, January 5, 2001, and April 11, 2001.

5 Court appointed special advocates. See Tex. Fam. Code Ann. '' 107.031, 264.601(2) (Vernon 1996 & Supp. 2002).

6 While Texas courts of appeal have been divided on the question of applying a higher standard of sufficiency review in appeals from the termination of parental rights, this Court has not applied an elevated standard of review when examining the sufficiency of such cases. In re I.V., 61 S.W.3d 789, 794 (Tex. App.BCorpus Christi 2001, no pet.)

7The court found that appellant had committed the following acts or omissions under section 161.001(1) of the family code:

(D) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who have been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child=s removal from the parent under Chapter 262 for the abuse or neglect of the child;

(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code: (1) in a manner that endangered the health or safety of the child, and failed to complete a court-ordered substance abuse treatment program; or (2) repeatedly, after completion of a court-ordered substance treatment program, in a manner that endangered the health or safety of the child.

See Tex. Fam. Code Ann. '161.001(1)(D), (E), (O) & (P) (Vernon Supp. 2002).

8Samuel Salas, the director of inpatient treatment services at the facility, testified Cervantes admitted to him using cocaine shortly before her entry. He stated that the program Aensures a drug-free baby@ for an enrolled pregnant woman.

9 She was incarcerated for writing insufficient checks for which offense she was later placed on deferred adjudication probation in Dewitt County and Victoria County. At the time of the termination hearing, a motion to adjudicate guilt had been filed on one of her cases.

[10]Cervantes admitted that her husband was a habitual user of marijuana and had a history of battering her.