In the Interest of F.C., C.C., T.C., Minor Children--Appeal from 82nd District Court of Falls County

In the Interest of FC, CC and TC, Minor Children /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-01-088-CV

 

IN THE INTEREST OF

F.C., C.C., AND T.C., MINOR CHILDREN

 

 

From the 82nd District Court

Falls County, Texas

Trial Court # 33,276

O P I N I O N

Mary Cummins s parental rights were terminated by the trial court in October 2000. She raises four issues on appeal. She argues that: 1) the trial court failed to notify the Indian tribe of their right of intervention as required by the Indian Child Welfare Act; 2) the trial court failed to correctly apply the Indian Child Welfare Act standard for termination of parental rights of an Indian child; 3) the trial court erred in finding that Cummins engaged in conduct that endangered the physical or emotional well-being of the children; and 4) the trial court erred in finding that Cummins failed to comply with a court ordered plan of service.

Indian Child Welfare Act

In her first point, Cummins argues that the trial court erred in terminating her parental rights without notifying the tribe of their right of intervention. In her second point, she asserts that the court applied the improper standard of review for termination of an Indian child under the Indian Child Welfare Act ( ICWA ).

The provisions of the ICWA must be followed in any proceedings involving termination of the parental rights over Indian children. See Indian Child Welfare Act, 25 U.S.C.A. 1912 (1983); Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W.3d 870, 874 (Tex. App. Dallas 2000, pet. denied). The ICWA provides in any involuntary proceeding in State court, where the court knows or has reason to know that an Indian child is involved, the party seeking termination shall notify the parent, Indian custodian, and the Indian child s tribe. 25 U.S.C.A. at 1912. Under the ICWA, an Indian child is defined as any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. Id. at 1903 (4).

Cummins argues that the trial court terminated her parental rights without first notifying the Indian tribe, and without applying the proper standard of review under the Act. However, Cummins presents no evidence to support her contention that the children qualify as Indian children under the ICWA. The sole evidence of Cummins alleged Indian heritage was a statement in Dr. Shinder s report stating she was a Caucasian/Native American (Cherokee descent) woman.

In order to ensure jurisdiction, this Court requested an affidavit containing the facts supporting Cummins s position that the children are Indian children as defined by the ICWA. See Tex. Gov t Code Ann. 22.220(c) (Vernon 1988); Tex. R. App. P. 10.2(a); Mellon Service Co. v. Touche Ross & Co., 946 S.W.2d 862, 864 (Tex. App. Houston [14th Dist.] 1997, no pet.). In her affidavit, Cummins stated: I am not an enrolled member of any tribe. To the best of my knowledge, neither of my parents were members of a tribe. I have never taken the steps necessary to enroll my children in any tribe. Because her children are neither a) members of an Indian tribe, or b) eligible for tribe membership and the biological child of a member of an Indian tribe, the ICWA does not apply. See 25 U.S.C.A. 1903 (4). Accordingly, we find notice to an Indian tribe as specified in the ICWA is not required, and the court was not required to apply the standard of review for termination as set forth in the ICWA. Accordingly, points one and two are overruled.

Clear and Convincing Evidence

In point three, Cummins argues that the trial court erred in finding that she engaged in conduct that endangered the physical or emotional well-being of the children. On appeal, an involuntary termination of parental rights must be strictly scrutinized because termination proceedings involve the fundamental constitutional rights surrounding the parent-child relationship. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.L.N., 958 S.W.2d 934, 936 (Tex. App. Waco 1997, pet. denied). A termination of parental rights is an irrevocable act severing the parent-child relationship for all purposes, except for the right of inheritance. Id.; Tex. Fam. Code Ann. 161.206(b) (Vernon 1996). Because a termination involves rights of "constitutional dimension," the grounds for termination must be proved by clear and convincing evidence at trial. See id. at 161.001 (Vernon Supp. 2001); 161.206(a); D.L.N., 958 S.W.2d at 936 (citingRichardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). Termination of parental rights is a two prong test. The trial court must find by clear and convincing evidence that the parent 1) engaged in one of the predicate acts listed in the Family Code, and 2) that termination was in the children's best interest. See 161.001(1) & 161.001(2); In re A.P., 42 S.W.3d 248, 257 (Tex. App. Waco 2001, no pet.). Thus, the court may order termination if the court finds by clear and convincing evidence that the parent has 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 and termination was in the child s best interest. Id. at 161.001(1)(E) & 161.001(2).

Cummins argues that an abuse of discretion standard should apply to the court s termination of her parental rights. We disagree. The trial court's findings of fact after a bench trial are reviewed for legal and factual sufficiency by the same standards applied in reviewing the evidence supporting a jury's answer. See Cason v. Taylor, 51 S.W.3d 397, 403 (Tex. App. Waco 2001, no pet.); Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App. Waco 1997, writ denied). No findings of fact or conclusions of law were filed in this case, but a reporter s record was filed. When, as here, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings in support of the trial court's judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex. App. Dallas 2001, pet. denied). When a reporter's record is included in the record on appeal, the implied findings may be challenged for legal and factual sufficiency. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam); King, 43 S.W.3d at 19. We review implied findings by the same standards we use in reviewing the sufficiency of the evidence to support a jury's answers or a trial court's fact findings. Id. Cummins fails to state in her brief whether she is challenging the legal or factual sufficiency of the evidence. Despite Cummins s failure to articulate her specific sufficiency challenge, we will review the evidence for both legal and factual sufficiency in the interest of justice.Legal Sufficiency

To determine whether the evidence is legally sufficient to support the court s finding, we consider only the evidence supporting the verdict "in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor." We will find the evidence legally insufficient if: (1) there is a complete absence of evidence for the finding, (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the finding, or (4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). "More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). The "no evidence" standard is the same for findings made under the "clear and convincing standard" as for a preponderance standard. See Spangler v. Texas Dept. of Regulatory Services, 962 S.W.2d 253, 257 (Tex. App. Waco 1998, no pet.).

Factual Sufficiency

To determine whether the evidence is factually sufficient to support a jury finding made under the "clear and convincing" standard, we consider all the evidence in the record both for and against it, and we will find the evidence factually insufficient "if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence." Id. This could occur if: "(1) the evidence is factually insufficient to support a finding by clear and convincing evidence; or (2) a finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing." Id. This intermediate standard of review is necessary to preserve the constitutionally protected interests involved in a termination of parental rights. Id.

Evidence

Cummins s three children are F.C., T.C., and C.C. The evidence demonstrates the following:

1) Cummins struck F.C. at the grocery store on one occasion;

 

2) Cummins left T.C. in the Wal-Mart parking lot and drove off without her;

 

3) C.C. had bruises and marks on his body and neck;

4) C.C. had a cigarette burn on his chest while Cummins placed him under the care of her aunt;

5) With all the children riding along as passengers, Cummins wrecked her car while she was intoxicated and speeding;

6) Cummins admitted that her alcohol problems may have contributed to her past mistakes with the children s care;

7) F.C. and T.C. reported incidents of sexual abuse by their brother C.C.;

8) F.C. reported that Terry Washington, Cummins s boyfriend, touched her inappropriately;

9) Child Protective Services ( CPS ) reported that the Cummins home where the children lived was filthy, smelled foul, and was infested with roaches and spiders; and

10) The CPS visits to the Cummins home indicated that the children appeared hungry, dirty, and there was no running water.

Despite abandoning her service plan and stating that she wanted the children to live with her aunt, Cummins decided to fight the termination of her parental rights. She said she still loves her children and admitted making mistakes in the past. She testified that she was unaware of any sexual abuse of the children. She further testified that she no longer abuses alcohol and has obtained steady employment.

Endangerment

The evidence strongly supports the court s finding by clear and convincing evidence that Cummins caused the children to be endangered. Although endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family life, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (quoting Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The term simply means to expose to loss or injury; to jeopardize. Id. For example, allowing children to live in unsanitary conditions, and neglecting their physical condition, can be endangerment. See id. at 270. Here, CPS reports demonstrated that Cummins allowed the children to live in unsanitary conditions and neglected their physical condition.

Furthermore, the courts have found that a "course of conduct" by a parent that jeopardizes a child's physical or emotional well-being is evidence of endangerment as defined by Boyd. See Boyd, 727 S.W.2d at 533; D.L.N., 958 S.W.2d at 938. In the D.L.N. case, we could not point to one specific act that justified termination of parental rights. We did, however, find that the pattern established by the parent's bad temper, neglect of the child's physical and emotional well-being, inability to deal with the child's emotional needs, limited interaction with the child, and treatment of the child's siblings was legally sufficient to support an involuntary termination under section 161.001(1)(E). Id. at 938-39. Such a course of conduct applies in this case. Cummins s pattern of substance abuse and neglect, coupled with the evidence of sexual and physical abuse of the children while under her care, shows a course of conduct that endangered the physical and emotional needs of the children.

Viewing the evidence in a light that supports the trial court s finding, we conclude that there was more than a scintilla of evidence that Cummins engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of each child. We find the evidence legally sufficient to support the court s finding of endangerment.

Viewing all the record evidence we cannot say that the court s finding of endangerment was against the great weight and preponderance of the evidence. Accordingly, we find the evidence factually sufficient to support the court s finding of endangerment. We now examine the best interest evidence for legal and factual sufficiency.

Best Interest

The evidence in the present case must also support the court s finding by clear and convincing evidence that termination was in the children's best interest. The Texas Supreme Court identified some of the factors which might justify such a finding. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); see also In re J.O.C., 47 S.W.3d 108, 114-15 (Tex. App. Waco 2001, no pet.). The list is not exhaustive, nor must there be evidence of all of the factors. See J.O.C., 47 S.W.3d at 115. The factors pertinent to this case are: (1) the emotional and physical needs of the child now and in the future; (2) the emotional and physical danger to the child now and in the future; (3) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; (4) parental abilities; and (5) any excuse for the acts or omissions of the parent.

The evidence is strong that termination was in the best interest of these children. The record shows that Cummins consistently failed to meet the physical and emotional needs of the children. CPS visits found the children hungry and dirty on more than one occasion, and the home was reported filthy and without running water. Cummins, while intoxicated, placed the children in physical danger and an automobile accident resulted. She also abandoned her youngest child in a store parking lot. Further, Cummins exposed the children to physical and sexual abuse while under her care. Accordingly, we find the record legally and factually sufficient to support involuntary termination of Cummins parental rights. Point three is overruled.

Cummins argues in point four that the trial court erred in finding that she failed to comply with a court ordered plan of service. Having already found that the court s termination was supported by sufficient evidence, we need not address this issue. Point four is overruled.

REX D. DAVIS

Chief Justice

 

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed January 23, 2002

Do not publish

[CV06]