IN THE INTEREST OF S. E. L., II, A MINOR CHILD--Appeal from 267th District Court of Victoria County

NUMBER 13-03-213-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

IN THE INTEREST OF S.E.L., II, A MINOR CHILD

On appeal from the 267th District Court

of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Opinion by Chief Justice Valdez

This appeal arises from an order terminating the parental relationship between appellant, Heather Duge, and her child, S.E.L., II. See Tex. Fam. Code Ann. 161.001 (Vernon 2002). Appellant contends the evidence presented to the trial court was factually insufficient to support the court s conclusion that appellant s parental rights should be terminated. We disagree and affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 19, 2002, appellant gave birth to S.E.L., II. The infant s urine tested positive for the presence of cocaine. On March 21, 2002, the Texas Department of Protective and Regulatory Services (the Department) initiated proceedings to terminate appellant s parental rights. In an order issued the same day, the trial court named the Department the temporary sole managing conservator of the infant.

The trial court held a hearing on February 24, 2003. Subsequent to the hearing, the trial court issued an order terminating the parent-child relationship between appellant and S.E.L., II.

As this is a memorandum opinion, we will not recite additional facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. ANALYSIS

A. Standard of Review

In parental termination proceedings, the State must prove its allegations with clear and convincing evidence. Tex. Fam. Code Ann. 161.001 (Vernon 2002). Clear and convincing evidence is that measure or degree of proof which 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. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)).

When reviewing a challenge to the factual sufficiency of evidence, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State s allegations. In re C.H., 89 S.W.3d at 25; see In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the evidence in favor of the finding. In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient [i]f, 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. Id.

B. Termination of Parental Rights

Before parental rights may be terminated, the evidence must establish: (1) a statutory ground for termination and (2) the termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001(1), (2) (Vernon 2002). We may affirm the decision of the trial court if we find the evidence factually sufficient to support any single statutory ground relied on by the trial court and that termination is in the best interest of the child. In re N.R., 101 S.W.3d 771, 775 (Tex. App. Texarkana 2003, no pet.).

Here, the trial court based its termination order on a finding that three of the statutory grounds were satisfied and a finding that termination was in the best interest of S.E.L., II. On appeal, appellant does not independently challenge each of these findings. Rather, appellant generally argues the evidence was factually insufficient to support the termination of her parental rights. We consider first whether the evidence was factually sufficient to support any one of the statutory grounds found by the judge.

1. Statutory Ground

One of the statutory grounds found by the trial court was that appellant 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 Tex. Fam. Code Ann. 161.001(1)(E) (Vernon 2002). Endanger refers to conduct that is more than a threat of metaphysical injury or the possible ill-effects of a less-than-ideal family environment. In re N.R., 101 S.W.3d at 775 (citing Tex. Dep t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). The child does not need to suffer actual physical injury under this definition but must be exposed to loss or injury. Id. (citing Boyd, 727 S.W.2d at 533). A mother s use of drugs during pregnancy is conduct that endangers the physical and emotional well-being of a child. In re W.A.B., 979 S.W.2d 804, 806 (Tex. App. Houston [14th Dist.] 1998, pet. denied); Dupree v. Tex. Dep t of Protective and Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App. Dallas 1995, no writ).

Here, appellant s own testimony at the termination hearing established that on March 18, 2002, the day before she went into labor, she ingested cocaine. The State provided evidence that urine collected from S.E.L., II after he was born tested positive for the presence of cocaine. Appellant also admitted that at the time she ingested the cocaine, she realized her use of drugs might be a danger to her unborn child.

Paul Linke, a registered nurse, testified that babies born on drugs tend to be smaller than average, may be born prematurely, are sometimes jittery, may have feeding problems, and can be hyper-irritable. He also said cocaine is known as a basal constrictor, which narrows blood vessels and decreases blood supply in the mother and baby and can result in stress to the baby. Linke recalled that S.E.L., II was an unusually small infant, had an infection, and stayed in the hospital longer than usual. Appellant also testified S.E.L., II was due in April but was born in mid-March.

Based on this evidence, we conclude the trial court had sufficient evidence before it to produce in its mind a firm belief or conviction that appellant engaged in conduct that endangered S.E.L., II s physical and emotional well-being. See In re C.H., 89 S.W.3d at 25.

2. Best Interest

We next consider whether the evidence was factually sufficient to support the trial court s finding that termination was in the best interest of S.E.L., II. In Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), the supreme court listed a number of factors that may be pertinent when determining whether termination is in the best interest of the child:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the best interest of the child;

(F) the plans for the child by these individuals or by the agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Id. at 371-72. This list, while instructive, is not exhaustive. Id.; see In re C.H., 89 S.W.3d at 27. Nor is evidence of all these considerations required to form a strong conviction or belief that termination is in the best interest of the child. In re C.H., 89 S.W.3d at 27.

The need for permanence is of utmost importance in evaluating a child s present and future physical and emotional needs. Dupree, 907 S.W.2d at 87. Here, the trial court heard evidence that appellant will be unable to provide for S.E.L., II s need for permanence or other physical and emotional needs now or anytime in the near future because she is currently serving an eight-year prison sentence. Janelle Nugent, a probation officer, testified appellant was placed on probation for sexual assault in August 2001. The trial court in the sexual assault case revoked appellant s probation on May 29, 2002 and sentenced her to eight years in prison. The last time appellant saw her child was in July 2002. Her earliest possible date for parole is 2006.

The trial court also heard evidence of appellant s drug use. She testified that before she became pregnant, she regularly used cocaine. Although she said she stopped using drugs regularly after she became pregnant, she did admit to using cocaine on March 18, 2002. Additionally, Nugent testified appellant tested positive for cocaine and marijuana four times in the two months after S.E.L., II was born. Appellant admitted to using drugs on those occasions. She also explained that she was in a treatment program in May 2002, but was discharged because she tested positive for cocaine.

The only interim plan offered for S.E.L., II s care during appellant s incarceration came from John Duge. Duge, S.E.L., II s great-grandfather, testified he wanted custody of S.E.L., II to place him in the South Texas Children s Home until appellant was released from incarceration. On appellant s release, she and S.E.L., II could move in with Duge.

The evidence showed appellant s past conduct and present incarceration render her unable to provide a stable, permanent environment for S.E.L., II within the next few years. Although Duge has offered a plan for S.E.L., II s care during that time, the plan calls for uprooting the child from his current foster care, placing him in a home for children, then uprooting him again when appellant is released from incarceration, which may or may not occur in 2006. This plan of action does not provide stability and permanence for S.E.L., II.

Appellant contends that while in jail she has made numerous efforts to improve her life. While incarcerated, she has attended AA, obtained a certificate for completing a parenting class, worked toward obtaining her G.E.D., been baptized, and attended various other classes. Appellant also contends her case is almost identical to the facts in In re K.C.M., 4 S.W.3d 392 (Tex. App. Houston [1st Dist.] 1999, pet. denied), where the appellate court found the evidence factually insufficient to support the trial court s finding that termination was in the best interest of the child. Id. at 398-99. We disagree.

In In re K.C.M., the appellant smoked marihuana at the end of her pregnancy. Id. at 396. She continued to use drugs after the birth of the child and financed her drug habit through prostitution. Id. Although the Department contacted appellant and monitored the case, the child was not initially removed from appellant s custody. Id. When the child was nearly two years old, appellant was found guilty of possession and sentenced to one year in jail. Id. at 393, 396. Ten months after her incarceration, the trial court held a trial and subsequently terminated appellant s parental rights. Id. at 394, 396.

In finding that the trial court erred in concluding termination was in the best interest of the child, the appellate court relied on evidence that appellant had attempted to improve her life while in jail. Id. at 398-99. Appellant remained sober for the ten months preceding the termination hearing and attended AA, completed parenting and other classes, took her G.E.D. exam, and was on a waiting list for a therapeutic drug program. Id. The appellate court also relied on the fact that appellant would be released from jail seventy-five days after the trial. Id. The court found the amount of time to complete an adoption would be comparable to the amount of time it would likely take appellant to complete the requirements to have the child returned to her approximately one year. Id. Additionally, the attorney ad litem argued that appellant had turned her life around. Id.

The circumstances here differ greatly in several aspects. Appellant will not be released from incarceration for another three years at the earliest. In the interim, S.E.L., II s need for permanence and other physical and emotional needs would not be satisfied. S.E.L., II will be four years old before appellant will be able to care for him, not considering additional time appellant would require to satisfy any conditions of return of the child imposed by the Department. Lastly, S.E.L., II s attorney ad litem appointed to represent S.E.L., II s best interest, recommended termination because she felt appellant had failed to step up to the plate. Because of these distinctions, In re K.C.M. has no application here.

Under the evidence presented in this case, a factfinder could reasonably form a firm conviction or belief that termination of appellant s parental rights was in the best interest of S.E.L., II. See In re C.H., 89 S.W.3d at 25. That is, the evidence was factually sufficient to support the trial court s finding.III. CONCLUSION

Having found the evidence was factually sufficient, we affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Opinion delivered and filed

this 4th day of December, 2003.