Affirmed =
and=20
Memorandum Opinion filed August 30, 2007.
In The
Fourteenth=20
Court of Appeals
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NO. 14-06-00762-CV
_______________
IN THE INTEREST OF C.L.S.
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On Appeal from the 300th District=20
Court
Brazoria County,=20
Texas
Trial Court Cause No. 30031
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M E M O R=20
A N D U M O P I N I O N
In this appeal from =
the trial=20
court=3Ds order terminating =
the=20
parental rights of a mother and father to their minor daughter, =
the mother=20
challenges the legal and factual sufficiency of the evidence to =
support=20
the jury=3Ds termination =
findings and the=20
court=3Ds refusal of her =
proposed jury=20
instruction. The father challenges the finding that the =
petitioning=20
state agency exercised due diligence to serve his citation. =
We=20
affirm.
I. =20
Factual and Procedural Background
Appellants Candace =
and Adam are=20
the married, but separated, parents of C.L.S. On March 4, =
Brazoria=20
County Child Protective Services, Texas Department of Family & =
Protective Services (Athe =
Department@) took possession of =
C.L.S.=20
under Chapter 262 of the Texas Family Code based on allegations of =
abuse=20
and neglect. The=20
Department subsequently moved to terminate Candace=3Ds and =
Adam=3Ds parental =
rights. =20
When C.L.S. was born =
in 2002,=20
Candace and Adam lived with Adam=3Ds mother in Alvin, =
Texas. =20
According to Candace, Adam had developed an addiction to =
prescription=20
drugs after an on-the-job injury that had occurred just prior to =
the=20
child=3Ds birth. =
Candace=20
described this drug problem as a Arelapse@ based on =
Adam=3Ds prior drug use =
several years=20
earlier. =20
After his injury, Adam left his job, supporting both himself and =
his=20
family with worker=3Ds compensation =
payments and=20
gifts of cash from his mother. During this period, Candace =
was=20
completely dependent on Adam for financial support. =
According to=20
Candace, Adam saw multiple doctors in order to obtain different=20
prescription drugs to support his habit. A year later, =
Candace=20
discovered that Adam had also been using illegal drugs.
While Candace was =
still living=20
with Adam, she began to allow her paternal aunt, Nina, and her=20
aunt=3Ds husband, David =
(collectively,=20
the AIntervenors@), to spend =
increasing amounts=20
of time with C.L.S. At the time, Candace felt very close to=20
them. Candace also felt she needed help with C.L.S. since, =
as she=20
described it, Adam was not going to be a part of the =
child=3Ds life. The =
Intervenors=20
did not have any children of their own, and wanted to be =
Aa big =
part@ of =
C.L.S.=3Ds life.
According to Nina, =
the=20
frequency of her care for C.L.S. increased significantly in early=20
2004. Nina testified that she began to receive regular calls =
to pick=20
up C.L.S. from Adam=3Ds mother. Aside =
from=20
brief periods C.L.S. spent with Candace=3Ds grandmother, the =
Intervenors=20
became C.L.S.=3Ds only regular=20
babysitters. During this period, C.L.S. would spend about=20
Aa weekend a =
month@ with =
them.
Eventually, Candace =
confronted=20
Adam about his drug use, and the couple agreed that Candace would =
take=20
C.L.S. and leave the marriage. Nevertheless, Candace and =
C.L.S.=20
continued to live =
with Adam and=20
his mother. Candace testified that because Adam was afraid =
that=20
Candace and C.L.S. would soon leave, he locked Candace out of the =
house=20
and denied her access to C.L.S. for approximately three =
weeks. The=20
police were regularly called to the family home as Candace =
attempted to=20
retrieve C.L.S. In March 2004, Candace successfully removed =
C.L.S.=20
with the help of Adam=3Ds father, and she and =
C.L.S.=20
permanently moved out of the family home. Adam continued to =
live in=20
the house as it deteriorated into a Ahorrid@ and Adeplorable@ condition without =
running=20
water or electricity.
After Candace left, =
she took=20
C.L.S. to the home of the Intervenors and allowed her to live =
there while=20
she resided with friends. C.L.S. remained with the =
Intervenors from=20
May to August of 2004. During this period, Candace had no =
contact=20
with C.L.S. Because both Nina and David were employed, they=20
ultimately enrolled C.L.S. in daycare at their own expense. =
They=20
also bought clothes, food, diapers and other necessary items for=20
C.L.S.
A. =20
The Investigations
On May 16, 2004, the =
Department=20
began its first investigation into the possible abuse and neglect =
of=20
C.L.S. This investigation was initiated in response to =
reports that=20
the parents were using drugs, had a history of drug use, and that =
the home=20
was deteriorating and without utilities. A caseworker made =
several=20
unsuccessful attempts to contact Adam or Candace at the family =
home;=20
however, the caseworker did visit the Intervenors in their home =
and=20
observed C.L.S. there. According to Candace, this =
investigation was=20
initiated by Adam=3Ds father and members =
of her own=20
family who were trying to convince her to remove herself and =
C.L.S.=20
away from Adam and his Avery =
serious@ drug problem. =
On May 29,=20
2004, the Department wrote to Candace and informed her that it had =
concluded Candace Adid not have a role =
in the=20
alleged abuse or neglect.@ =
In July 2004, Candace =
was=20
arrested for possession of crack cocaine based on residue found on =
a pipe=20
discovered in her possession. Candace claimed that she was =
merely=20
holding the pipe for Adam. She pleaded guilty and was given =
three=20
years=3D deferred =
adjudication. =20
Also in July 2004, the Intervenors entered into a Child Safety =
Plan with=20
the Department. This plan, unsigned by Candace, stated that =
C.L.S.=20
would be placed with the Intervenors, who would provide for her=20
care. The plan also prohibited Candace and Adam from =
reclaiming=20
possession of the child. The plan was developed in response =
to the=20
Department=3Ds inability to locate =
or=20
contact Adam or Candace, as well as the Department=3Ds determination that =
living=20
with the Intervenors was the best option for C.L.S. at that time.=20
After C.L.S. had =
lived with=20
Nina and David for approximately four months, Candace moved into =
an=20
apartment with her grandmother. Candace=3Ds grandmother lived =
near the=20
Intervenors=3D house, and Candace =
saw C.L.S.=20
Aseveral times a=20
week.@ During a =
family=20
gathering at a restaurant in September 2004, Candace forcefully =
took=20
possession of C.L.S. from Nina. Although Candace=3Ds family called the =
police and=20
the Intervenors invoked the Department=3Ds Safety Plan, =
Candace was=20
allowed to leave with her daughter. On the next business =
day, the=20
Intervenors signed a Child Safety Plan stating that Candace =
volunteered to=20
place C.L.S. with them until November 10, 2004. The plan was =
signed=20
by a Department caseworker and by the Intervenors but was not =
signed by=20
Candace.
On October 18, 2004, =
the=20
Department wrote to Candace and informed her that Athe report made on =
your family=20
has been investigated and there was not sufficient information to=20
determine if the abuse/neglect did occur and we will be providing =
further=20
services.@ On the same =
day, Candace=20
signed a Child Safety Plan with the Department, committing herself =
to=20
substance abuse testing and lifestyle monitoring by the Department =
and=20
participation in family services through December 1, 2004. =
Despite=20
numerous requests from the Department, Candace failed to complete =
any=20
family services during that time. Nevertheless, the =
Department=20
completed its investigation on December 28, 2004, and again =
concluded that=20
Candace did not have a role in the alleged abuse or neglect. =
B. =20
The Removal
In early 2005, =
Candace decided=20
to obtain employment. Her efforts at finding a job were =
impaired by=20
her lack of a valid driver=3Ds license. Her =
license=20
had expired, and she was unable to renew it because of an =
outstanding=20
warrant for disturbing the peace. In order to remove the =
warrant=20
blocking renewal of her license, Candace reported to the Galveston =
police=20
and served two days in jail.
On March 3, 2005, =
while Candace=20
was in jail, the Department took emergency custody of C.L.S. and =
placed=20
the child in the temporary care of the Intervenors. This =
action was=20
taken after reports and complaints from family members that =
Candace was=20
gone and had left C.L.S. with Candace=3Ds elderly =
grandmother. On=20
March 10, 2005, Candace signed a lease on a house that she was to =
share=20
with her then-girlfriend (the AForrest Lane =
house@).
At the emergency =
custody=20
hearing on March 15, 2005, the judge awarded temporary managing=20
conservatorship of C.L.S. to the Department, and the Department =
placed=20
C.L.S. with the Intervenors. The=20
trial court also issued temporary injunctions restraining Candace =
and Adam=20
from removing C.L.S. and issued temporary orders stating =
requirements for=20
the restoration of their full parental rights.
After the Department =
obtained=20
custody of C.L.S., Candace descended into what she described as a=20
Avery dark@ depression. =
During this=20
period, she abused drugs heavily, and was, as she described =
herself,=20
Aunfit to be anywhere=20
near@ her child. She =
abandoned=20
the lease on the Forrest Lane house, and although Candace and Adam =
occasionally spent the night there, only Candace=3Ds girlfriend lived in =
the=20
Forrest Lane house consistently. When not staying at this =
house,=20
Candace lived with friends and, on occasion, with Adam. =
Ultimately,=20
the Forrest Lane house was allowed to deteriorate until it was =
abandoned=20
by all parties. Upon later inspection, the landlord =
discovered drug=20
paraphernalia and a dead pet that had been given to C.L.S. by the=20
Intervenors.
According to Candace, =
her=20
family helped her pull out of her depression and stop abusing =
drugs. =20
During the autumn of 2005, Candace began working at a store, and=20
maintained her job for approximately three-and-a-half =
months. But in=20
November 2005, Candace quit, left her grandmother=3Ds apartment, and =
again lived=20
with Adam for three months. During this time, they did not =
maintain=20
a regular home or address, but lived primarily in extended-stay =
motels or=20
stayed with friends. =20
=
In February 2006, =
Candace left=20
Adam and lived with a friend for some time. Later that =
month, she=20
moved into her grandmother=3Ds new =
apartment. In April=20
2006, Candace worked for approximately two-and-a-half weeks at a =
store in=20
Webster. After that, she began working at a restaurant in =
May. =20
In mid-July 2006, Candace began working in the office of a =
transmission=20
repair shop, where she was still employed at the time of trial in =
August=20
2006.
At trial, it was =
established=20
that in the period since C.L.S.=3Ds removal, Candace =
had=20
exercised her right of visitation with the child between eight and =
fifteen=20
times out of a possible thirty-four opportunities. =
Candace testified =
that she had=20
spoken to Adam about the termination proceedings during each =
period when=20
they lived together in 2005. She expressed certainty that =
Adam was=20
aware of the proceedings; however, she stated that she had not to =
have=20
heard from Adam since January 2006. =
The case was tried to =
a jury,=20
which found by clear and convincing evidence that: (1) Adam =
failed to=20
register with the paternity registry, and despite due diligence, =
the=20
Department failed to locate him; however, Adam was duly served =
with=20
citation =
and=20
appointed an attorney; (2) Candace and Adam each knowingly placed =
or=20
knowingly allowed C.L.S. to remain in conditions or surroundings =
that=20
endangered her physical or emotional well-being; (3) Candace and =
Adam each=20
engaged in conduct or knowingly placed C.L.S. with persons who =
engaged in=20
conduct that endangered her physical or emotional well-being; (4) =
Candace=20
and Adam each failed to support the child in accordance with their =
respective abilities during a period of one year ending within six =
months=20
of the date of the filing of the petition; (5) termination of the=20
parent-child relationships between Adam and C.L.S. and between =
Candace and=20
C.L.S. was in the child=3Ds best interests; (6) =
Candace=20
voluntarily left C.L.S. alone or in the possession of another not =
the=20
parent without expressing an intent to return, without providing =
for=20
C.L.S.=3Ds adequate support, =
and=20
remained away for a period of at least three months; and =
(7) Candace=20
failed to comply with the provisions of a court order that =
specifically=20
established the actions necessary for her to obtain =
C.L.S.=3Ds return after the =
child had=20
been in the temporary managing conservatorship of the Texas =
Department of=20
Family and Protective Services (ATDFPS@) for not less than =
nine months=20
as a result of the child=3Ds removal from the =
parent under=20
Chapter 262 of the Texas Family Code for the abuse and neglect of =
the=20
child.
On August 11, 2006, =
the court=20
signed a judgment terminating Candace=3Ds and =
Adam=3Ds parental rights to =
C.L.S. and=20
appointed the Intervenors as joint managing conservators of the =
child.=20
II. =20
Issues Presented
In her first issue, =
Candace=20
argues the evidence is legally and factually insufficient to =
support the=20
jury=3Ds findings of fault =
under=20
section 161.001 of the Texas Family Code. She contends in =
her second=20
issue that the trial court erred in refusing to instruct the jury=20
that termination of parental rights cannot be based on a =
single act=20
or omission endangering the child.
In a single issue, =
Adam=20
contends that the Department did not exercise due diligence in =
attempting=20
to locate him.
III. =20
Analysis
A. =20
Candace
1. =20
Challenges to Legal and Factual =
Sufficiency
Because termination =
of parental=20
rights is a drastic remedy, due process and the Texas Family Code =
require=20
the Department to prove the necessary elements by the heightened =
burden of=20
Aclear and convincing=20
evidence.@ See =
Tex. Fam. Code Ann. =
' 161.001 (Vernon =
Supp. 2006);=20
In re B.L.D., 113 S.W.3d 340, 353B54 (Tex. 2003). =
In this=20
case, the Department had to prove by clear and convincing evidence =
that=20
Candace engaged in one of the behaviors described in subsections=20
161.001(1)(B), (D), (E), (F), or (O). See Tex. Fam. Code Ann. =
' 161.001. =20
A>Clear and convincing=20
evidence=3D means the measure or =
degree of=20
proof that will produce in the mind of the trier of fact a firm =
belief or=20
conviction as to the truth of the allegations sought to be=20
established.@ Id. =
' 101.007 (Vernon=20
2002).
In reviewing the =
legal=20
sufficiency to support the jury=3Ds termination =
findings, we look=20
at all the evidence in the light most favorable to the =
jury=3Ds findings to =
determine whether=20
a reasonable factfinder could have formed a firm belief or =
conviction that=20
these finding are true. In re J.L., 163 S.W.3d 79, 85 (Tex. =
2005). We presume that the factfinder resolved disputed =
facts in=20
favor of its findings if a reasonable factfinder could do =
so. =20
Id. We disregard any contrary evidence if a =
reasonable=20
factfinder could do so, but we do not disregard undisputed =
facts. =20
Id.
In reviewing the =
factual=20
sufficiency of the evidence, we review the evidence in a neutral =
light and=20
determine whether the evidence is such that the jury reasonably =
could form=20
a firm belief or conviction about the truth of the =
State=3Ds allegations. =
In re=20
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We will not =
conclude=20
that the evidence is factually insufficient unless, in light of =
the entire=20
record, a reasonable factfinder could not have formed such a =
belief. =20
Id. In reviewing the evidence, we give due =
deference to=20
a jury=3Ds factfindings and do =
not=20
supplant the jury=3Ds judgment with our =
own. =20
In re H.R.M., 209 S.W.3d 105, 108 (Tex.=20
2006).
On appeal, the =
Department=20
contends that the grounds for termination are legally and =
factually=20
sufficient under sections 161.001(1)(E), (F), and (O). We =
need only=20
determine if the evidence is legally and factually sufficient to =
support a=20
single basis for termination. =
See Tex. =
Fam. Code=20
Ann. ' 161.001.
2. =20
Section 161.001(1)(E)
Subsection (E) =
permits=20
termination of parental rights where the parent has either:=20
(1) personally engaged in conduct which endangers the child, =
or (2)=20
knowingly placed the child with another person who engaged in =
dangerous=20
conduct. Id. ' 161.001(1)(E); =
In re=20
J.A.J., 225 S.W.3d 621, 628 (Tex. App.CHouston [14th Dist.] =
2005, pet.=20
filed) (maj. op. on reh=3Dg). As used in =
this=20
statute, Aendanger@ means to =
Aexpose to loss or =
injury; to=20
jeopardize.@ In re M.C., =
917 S.W.2d=20
268, 269 (Tex. 1996) (per curiam) (quoting Tex. =
Dep=3Dt of Human Servs. v.=20
Boyd, 727=20
S.W.2d 531, 533 (Tex. 1987)). AAlthough >endanger=3D means more than a =
threat of=20
metaphysical injury or the possible ill effects of a =
less‑than‑ideal=20
family environment, it is not necessary that the conduct be =
directed at=20
the child or that the child actually suffers injury.@ Id. =
(quoting=20
Boyd, 727 S.W.2d at 533). The relevant inquiry =
involves the=20
parent=3Ds acts and =
omissions. =20
In re J.A.J., 225 S.W.3d at 628. Termination =
may not=20
ordinarily be based on a single transaction, but rather =
Aa showing of a course =
of=20
conduct is required.@ Id. =
(quoting=20
In re D.P., 96 S.W.3d 333, 338 (Tex. App.CAmarillo 2001, no =
pet.));=20
see also In re D.T., 34 S.W.3d 625, 634 (Tex. =
App.CFort Worth 2000, pet. =
denied)=20
(A[A] voluntary, =
deliberate, and=20
conscious >course of =
conduct=3D by the parent is=20
required.@). Endangerment =
under=20
section 161.001(1)(E) may include evidence of drug addiction and =
its=20
effect on a parent=3Ds life and ability to =
perform=20
the duties of a parent. In re U.P., 105 S.W.3d 222, =
234 (Tex.=20
App.CHouston [14th Dist.] =
2003, pet.=20
denied). Conduct that subjects a child to a life of =
uncertainty and=20
instability also endangers the physical and emotional =
well‑being of a=20
child. In re R.W., 129 S.W.3d 732, 739 (Tex. =
App.CFort Worth 2004, pet. =
denied).=20
At trial, Candace =
openly=20
admitted to multiple episodes of Aendangering@ conduct after the =
birth of her=20
child. She admittedly pleaded guilty to a charge of cocaine=20
possession in July 2004, resulting in deferred adjudication for =
three=20
years. She admitted she violated her probation on many =
occasions by=20
using drugs and alcohol, and each violation subjected her to the =
risk of=20
immediate incarceration. She also admitted that she tested =
positive=20
for alcohol in a probation-related urinalysis screening just one =
month=20
prior to trial.
Candace also admitted =
she=20
served two days in jail in order to satisfy an outstanding =
warrant. =20
Although she testified that she had previously arranged for her=20
grandmother to care for C.L.S. during the day and Nina to care for =
the=20
child at night, Nina denied knowledge of any such plan before =
Candace went=20
to jail.
Candace further =
admitted that,=20
after the Department removed her daughter in early March 2005, she =
embarked upon a four-month Adrug =
binge.@ During this =
period, she=20
Adropped out of her=20
life@ and began =
Aheavily@ using ecstasy, =
marijuana,=20
cocaine, and alcohol, all in violation of her probation and of the =
trial=20
court=3Ds temporary =
orders. =20
Candace described herself as being Alost@ during those months; =
she=20
testified that she abandoned the lease that she had signed on =
March 10,=20
2005, and moved from place to place. =20
Despite Adam=3Ds addictions, Candace =
also=20
continued her relationship with Adam during this time. As =
she=20
readily admitted, Candace was Anot in any way fit to =
be near=20
[her] daughter@ during this period.=20
Candace=3Ds father-in-law =
testified that=20
after C.L.S. was born in December 2002, Candace told him that she =
was=20
actively selling drugs because Ashe had people to =
take care=20
of.@ Other =
witnesses=20
testified that while Candace and C.L.S. lived with Adam and his =
mother,=20
Adam was beaten at the family home in altercations connected with =
drug=20
dealing. An Alvin police officer testified that Candace was =
arrested=20
for public intoxication in May 2004. Two other officers from =
the=20
Pearland Police Department testified that on May 11, 2005, when =
answering=20
a call to the Forrest Lane house, they discovered drug =
paraphernalia and=20
baby clothes. They described the premises as being in =
Ahorrid@ and Adirty@ condition. =20
Both =
Candace=3Ds first and current =
counselors=20
testified that Candace refuses to accept responsibility for her=20
situation. In=20
her own trial testimony, Candace repeatedly stated that she feels =
her=20
separation from her daughter was brought about by interference =
from her=20
family and the Department. Although she expressed a strong =
desire to=20
be reunited with her daughter, she also admitted that she would be =
forced=20
to rely upon her family and the Department for childcare. =
She=20
further testified that the longest period during which she had =
been=20
employed since the birth of her child was for three-and-a-half =
months in=20
the fall of 2005.
Candace argues that =
termination=20
is unsupported because C.L.S. was not present during any of her=20
drug-related activities. But even assuming the truth of this =
assertion, it does not undermine the sufficiency of the =
evidence. =20
The Department is not required to prove that the child was present =
or even=20
born at the time of the misconduct. See In re S.F., =
32 S.W.3d=20
318, 322 (Tex. App.CSan Antonio 2000, no=20
pet.). The jury could properly consider Candace=3Ds drug history, =
housing=20
instability, and continued alcohol use as part of a continuing =
course of=20
conduct endangering C.L.S.=3Ds physical or =
emotional=20
well-being. See In re D.M., 58 S.W.3d 801, =
812B13 (Tex. =
App.CFort Worth 2001, no =
pet.)=20
(considering mother=3Ds drug use and =
housing=20
instability as factors showing legal and factual sufficiency of =
evidence=20
supporting endangerment finding). Even incarceration for =
failure to=20
pay fines is a fact properly considered by the jury. =
Id.
Viewing all the =
evidence in the=20
light most favorable to the judgment, we find the jury reasonably =
could=20
have formed a firm belief or conviction that the findings are =
true. =20
We therefore conclude that the evidence supporting the =
endangerment=20
finding is legally sufficient. See In re J.L., 163 =
S.W.3d at=20
85. Considering the evidence in a neutral light, we further =
conclude=20
that the evidence is factually sufficient to support a reasonable=20
jury=3Ds firm belief or =
conviction=20
that Candace has engaged in a voluntary, deliberate, and conscious =
course=20
of conduct that endangered C.L.S.=3Ds physical or =
emotional=20
well-being. See In re J.F.C., 96 S.W.3d at 266; In =
re=20
J.A.J., 225 S.W.3d at 628. We therefore overrule=20
Candace=3Ds first =
issue.
2. =20
Challenge to Jury Charge
In her second issue, =
Candace=20
contends that the trial court erred by failing to submit the =
following=20
instruction:
In determining =
whether a parent=20
engaged in conduct that endangered the child or knowingly placed =
the child=20
with persons who engaged in conduct that endangered the child, =
there must=20
be a showing of a course of conduct by the parent that endangered =
the=20
child, and termination cannot be based on a single act or omission =
of=20
endangerment.
We review allegations =
of charge=20
error for abuse of discretion. Texas =
Dep=3Dt of Human Servs. v.=20
E.B., 802=20
S.W.2d 647, 649 (Tex. 1990).
Here, Candace argues =
that the=20
failure to include this proposed instruction was an abuse of =
discretion=20
because the instruction is explicitly based on Doria v. Texas=20
Department of Human Resources. 747 S.W.2d 953 (Tex.=20
App.CCorpus Christi 1988, =
no=20
writ). In Doria, the Corpus Christi Court of Appeals=20
concluded that evidence a mother left her children alone a single =
time was=20
factually insufficient to support termination of her parental=20
rights. Id. at 959. But Doria does not =
concern=20
jury charge error, and Candace cites no other authority for the=20
proposition that refusal of her proposed jury instruction =
constitutes an=20
abuse of discretion.
A trial court abuses =
its=20
discretion only when it acts without reference to any guiding=20
principle. E.B., 802 S.W.2d at 649. Moreover, a =
trial=20
court has considerably more discretion in submitting instructions =
and=20
definitions than it has when submitting jury questions. =
M.N.=20
Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 631 (Tex.=20
App.CHouston [14th Dist.] =
1992, writ=20
denied). The trial court must submit Asuch instructions and =
definitions as shall be proper to enable the jury to render a=20
verdict.@ Tex. R. Civ. P. =
277. This=20
rule affords the trial court considerable discretion to decide =
what=20
instructions are necessary and proper in submitting issues to the=20
jury. State Farm Lloyds v. Nicolau, 951 S.W.2d 444,=20
451B52 (Tex. 1997). =
It is=20
well-settled that a jury charge that Atracked the statutory =
language=20
in the instruction and then asked the controlling =
question@ does not amount to =
an abuse of=20
discretion. E.B., 802 S.W.2d at 649. =
Accordingly, we=20
overrule Candace=3Ds second =
issue.
B. =20
Adam
Adam contends that =
the evidence=20
is legally and factually insufficient to show that the Department=20
exercised due diligence to locate him. We disagree. =
The=20
finding of due diligence is supported by evidence that the=20
Department=3Ds attempts to locate =
Adam=20
included the following:
1. =20
A Department supervisor conducted an internet search of jails and=20
=
prisons; =20
2. =20
Service was attempted at two addresses;
3. =20
A caseworker visited a third address to look for Adam;
4. =20
The Department sent a certified letter concerning this suit to =
Adam, and=20
Adam signed and accepted the letter;
5. =20
A caseworker asked Candace for Adam=3Ds address, and Candace reported that she =
did not=20
know Adam=3Ds whereabouts;
6. =20
After the Intervenors reported that Adam might be staying with his =
mother,=20
Lynn, at a hotel or motel known as ATweety=3Ds@ and that Lynn might be staying with a =
New Orleans=20
evacuee, a Department supervisor visited two such businesses and =
could not=20
locate Adam=3Ds mother or learn if an evacuee was =
staying there;=20
and
7. =20
A Department supervisor spoke to Candace=3Ds grandmother and was =
told that=20
Adam was not staying there.
When these efforts =
were=20
unsuccessful, the Department accomplished citation by =
publication. =20
Under the standards for legal and factual sufficiency previously=20
described, a reasonable jury could form a firm belief or =
conviction that=20
the allegations of due diligence are true. We therefore =
overrule=20
Adam=3Ds sole =
issue.
IV.=20
Conclusion
With regard to =
Candace, we=20
conclude that the evidence is legally and factually sufficient to =
support=20
the jury=3D finding that she =
engaged in=20
conduct that endangered C.L.S.=3Ds physical or =
emotional=20
well-being. We further hold that the trial court did not =
abuse its=20
discretion by refusing Candace=3Ds proposed jury=20
instruction. Accordingly, we overrule both of her presented=20
issues. We likewise overrule Adam=3Ds challenge to the =
finding that=20
the Department exercised due diligence in attempting to locate =
him. =20
Accordingly, we affirm the
trial =
court=3Ds judgment =
terminating the=20
parental rights of both Candace and Adam.
/s/ Eva=20
M. Guzman
Justice
Judgment rendered and =
Memorandum Opinion filed August 30, 2007.
Panel consists of =
Justices=20
Frost, Seymore, and=20
=
Guzman. =
&=
nbsp; &n=
bsp;=20
Brazoria County Child Protective =
Services=20
is a division of Texas Department of Family & Protective=20
Services.
Candace also admitted to her own =
regular=20
drug use, occurring approximately seven years before the trial.=20
No transcript of the hearing is =
in the=20
record.
Adam was served by=20
publication.
Although the Department attempted =
to locate=20
Adam and served him by publication, Adam phrases his appeal as a =
challenge=20
to TDFPS=3Ds failure to serve him. Brazoria =
County=20
Child Protective Services is the division of TDFPS that actually =
brought=20
the suit; thus, for clarity, we refer to the actions of the=20
Department.
Candace does not challenge the=20
jury=3Ds finding that termination of her =
parental rights=20
is in her daughter=3Ds best interest.
The Department concedes the =
insufficiency=20
of the evidence to support the jury=3Ds findings under subsections (1)(B) and=20
(1)(D).
For example, on April 2, 2005, =
neighbors=20
called the police to investigate noises at the abandoned residence =
that=20
Candace formerly shared with Adam. The police discovered =
Candace and=20
her girlfriend having sex in the derelict house, which was strewn =
with=20
filth.
Candace saw her first counselor =
four=20
times. Three months later, she was discharged from therapy =
for=20
absenteeism. She later saw a second counselor three times, =
but made=20
no further appointments. The second counselor testified that =
they=20
had not reached the initial stage of setting goals for therapy, =
but=20
Candace had not scheduled any additional =
appointments.
Candace further argues on appeal =
that the=20
evidence offered to support the finding under subsection (E) is =
legally=20
insufficient because it related to conduct that occurred after the =
Department=3Ds petition had been filed. =
However, she=20
offers no authority to support the argument that this evidence was =
beyond=20
the jury=3Ds consideration, nor did she object to =
the=20
admission of the evidence on this basis at trial. The =
argument is=20
therefore waived. See Tex. R. App. P. =
33.1(a),=20
38.1(h).
Appellant mentions In re =
D.P., 96=20
S.W.3d 333 (Tex. App.CAmarillo 2001, no writ); however, =
D.P.=20
concerns factual insufficiency arising when the =
child=3Ds injuries could have been inflicted by =
one of=20
several people and the Department of Protective and Regulatory =
Services=20
admits there is Alittle evidence@ that the appellant placed her child in =
conditions=20
endangering her son=3Ds well-being. The case does not =
mention=20
Doria or charge error, and appellant seems to have cited it =
merely=20
for the standard of review applicable to a challenge to the =
factual=20
sufficiency of evidence of=20
=
endangerment. |