Opinion
No. 10-06-00350-CV
Opinion delivered and filed August 29, 2007.
Appeal from the County Court Hill County, Texas, Trial Court No. 42255.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
In accordance with a jury verdict, the trial court signed a decree terminating Fleasha Hurt's parental rights to her child K.D. Hurt asserts in two issues that: 1) the court violated her right to due process by denying her motion for continuance and proceeding to trial while she was incarcerated in a federal penitentiary; and 2) there is no evidence and factually insufficient evidence to support the termination decree. We will affirm.
Evidentiary Sufficiency
Hurt contends in her second issue that there is no evidence and factually insufficient evidence to support the termination decree.
For a no-evidence review, 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." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re T.N.F., 205 S.W.3d 625, 630 (Tex.App.-Waco 2006, pet. denied). For a factual sufficiency review, we view the evidence in a neutral light asking "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); T.N.F., 205 S.W.3d at 630.
In a proceeding to terminate the parent-child relationship, the petitioner must establish two elements by clear and convincing evidence: (1) one or more acts or omissions enumerated under Texas Family Code section 161.001(1) (termed a predicate violation); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2006); T.N.F., 205 S.W.3d at 629. Proof of one element does not relieve the petitioner of the burden of proving the other. T.N.F., 205 S.W.3d at 629. When multiple predicate violates were found in the trial court, we may affirm based on any one ground because only one predicate violation is necessary. Id.
The court found that Hurt had knowingly placed or knowingly allowed K.D. to remain in conditions or surroundings which endangered her physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(1)(D). Although "endangerment" entails more than an abstract threat of injury, any act or omission which exposes the child to injury or otherwise jeopardizes the child's physical or emotional well-being is sufficient. See Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re U.P., 105 S.W.3d 222, 233-34 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Endangerment may be inferred from the parent's conduct. Cervantes-Peterson v. Tex. Dep't of Protective Regulatory Servs., 221 S.W.3d 244, 253 (Tex.App.-Houston [1st Dist.] 2006, no pet.). It may include parental conduct before the child's birth. U.P., 105 S.W.3d at 234. Thus, drug abuse during pregnancy constitutes endangerment. Cervantes-Peterson, 221 S.W.3d at 253; 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 Regulatory Servs., 907 S.W.2d 81, 84 (Tex.App.-Dallas 1995, no writ). The parent's imprisonment may also support a finding that the parent has engaged in a course of conduct which endangered the child's physical or emotional well-being. Harris v. Herbers, 838 S.W.2d 938, 942 (Tex.App.-Houston [1st Dist.] 1992, no writ).
K.D.'s paternal aunt Stacy Miller testified that she saw Hurt using drugs while pregnant. Miller had taken K.D. from Hurt shortly before the State intervened, and she testified that when she took K.D., the two-month-old child was unbathed, smelled of cigarette smoke, and was underweight. According to Miller, Hurt and K.D.'s presumed father Michael Dawkins both had "drug problems." She testified that Hurt used methamphetamine during her pregnancy and that Hurt and Dawkins had been producing methamphetamine in the apartment they shared with K.D.
Child Protective Services investigator Katy Prescott testified that the apartment Hurt, Dawkins, and K.D. lived in had no electricity. It was 40 degrees outside, and the windows were open. Furniture and portions of the apartment were burned because another roommate had doused his girlfriend with fuel and attempted to set her on fire.
When Prescott confronted Dawkins with the drug abuse allegations, he denied using methamphetamine and insisted that he only smoked marijuana. Hurt admitted that she had smoked marijuana before becoming pregnant but insisted that she had not used any drugs since she became pregnant. However, Hurt and Dawkins both later admitted that they had been using methamphetamine.
Since K.D. was removed from Hurt's care, Hurt has been incarcerated twice for drug-related offenses. At the time of trial, Hurt was serving a three-year federal sentence for attempting to manufacture methamphetamine. After K.D.'s removal, Hurt was in jail for about one month before being released to an inpatient drug treatment program. Upon release from the drug program, Hurt failed to advise anyone of her whereabouts and did not attempt to visit K.D. for a month.
Hurt argues that this evidence falls short of being "clear and convincing." She points to the fact that K.D. was already in Miller's care when the State intervened because Hurt and Dawkins had asked Miller to take the child. None of the investigators or case workers personally witnessed Hurt neglect or endanger the child. Hurt also argues that Prescott has no personal knowledge of the condition of the apartment while K.D. was living there, only the condition of the apartment after K.D. left. Hurt's mother Yvonne testified that she never saw Hurt using drugs while pregnant nor did she know of drugs being used or manufactured around K.D. Yvonne testified that Hurt had been drug free for over a year.
The testimony regarding Hurt's drug abuse, her criminal behavior, and the conditions of the apartment is evidence of conditions or surroundings that endangered K.D.'s physical and emotional well-being.
An environment which routinely subjects a child to the probability that she will be left alone because her parents are once again jailed, whether because of the continued violation of probationary conditions or because of a new offense growing out of a continued use of illegal drugs, or because the parents are once again committed to a rehabilitation program, endangers both the physical and emotional well-being of a child. Conduct that results in such disability, and conduct that subjects a child to a life of uncertainty and instability, endangers the physical and emotional well-being of a child.
In re S.D., 980 S.W.2d 758, 763 (Tex.App.-San Antonio 1998, pet. denied).
Viewing the evidence in the light most favorable to the verdict, we hold that a reasonable trier of fact could have formed a firm belief or conviction that Hurt had knowingly placed or knowingly allowed K.D. to remain in conditions or surroundings which endangered her physical or emotional well-being. See Cervantes-Peterson, 221 S.W.3d at 254. When viewed in a neutral light, the evidence is such that the jury could reasonably form a firm belief or conviction that Hurt had knowingly placed or knowingly allowed K.D. to remain in conditions or surroundings which endangered her physical or emotional well-being. Id. We need not address the sufficiency of the evidence to support the other predicate violations for termination. See T.N.F., 205 S.W.3d at 629.
Best Interest of the Child
"[T]here is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship." Id. at 633. Several factors assist in determining if termination is in a child's best interest: 1) desires of the child; 2) emotional and physical needs of the child now and in the future; 3) emotional and physical danger to the child now and in the future; 4) parental abilities of the individuals seeking custody; 5) programs available to assist these individuals to promote the best interest of the child; 6) plans for the child by these individuals or by the agency seeking custody; 7) stability of the home or proposed placement; 8) acts/omission of the parent which may indicate that the existing parent-child relationship is not proper; and 9) any excuse of the acts/omission of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); Cervantes-Peterson, 221 S.W.3d at 254; T.N.F., 205 S.W.3d at 632. This list is not exhaustive. Cervantes-Peterson, 221 S.W.3d at 254; T.N.F., 205 S.W.3d at 632.
The evidence at trial showed that Hurt had been unable to keep K.D. clean. Hurt and Dawkins were virtually homeless and unable to provide a stable environment for K.D. Miller stated she had observed Hurt being "quite rough" with K.D. Miller characterized Hurt's and Dawkins's relationship as "rocky" and testified that there was a lot of hostility between them. Hurt attended only about half of her scheduled visits with K.D. She claimed that at least some of these visits were canceled and she was sick or unable to find transportation for the others.
Hurt has failed to comply with her court-ordered family service plan. She has not maintained a residence, held down a job, or regularly attended counseling. She has failed to pay child support. She has not completed parenting courses. She completed drug rehabilitation as part of her first incarceration, but federal charges for manufacturing methamphetamine followed. Hurt complained that transportation problems and illness prevented her from completing these tasks. However, she has failed to take advantage of services for which transportation was provided. Hurt failed to complete several programs made available to her, including additional drug rehabilitation, counseling, and parenting classes.
K.D.'s foster mother testified that K.D. had become a part of her family in the year and two months she had live with them. K.D. refers to her foster parents as mom and dad, and they hope to adopt her.
Little testimony was offered with regard to Hurt's plans for K.D. following Hurt's release. Yvonne and Hurt's sister-in-law Betty testified that K.D. should stay in the family. Betty testified to having completed a successful home study to gain custody of K.D. Betty said she wanted to have custody of K.D. to help re-establish her relationship with Hurt and the family. Betty also testified that a local day care facility at which Hurt worked in high school would be willing to hire Hurt upon release from prison. Betty testified that before K.D. was taken from Hurt, she had seen K.D. only once, which was in the hospital after her birth. Since that time, Betty has been around K.D. only twice for a few minutes each visit.
Viewing the evidence in the light most favorable to the verdict, we hold that a reasonable trier of fact could have formed a firm belief or conviction that termination of the parent-child relationship is in K.D.'s best interest. See Cervantes-Peterson, 221 S.W.3d at 254-55; In re A.D., 203 S.W.3d 407, 413-14 (Tex.App.-El Paso 2006, no pet.). When viewed in a neutral light, the evidence is such that the jury could reasonably form a firm belief or conviction that Hurt had knowingly placed or knowingly allowed K.D. to remain in conditions or surroundings which endangered her physical or emotional well-being. Id. Accordingly, we overrule Hurt's second issue.
Motion for Continuance
Hurt contends in her first issue that the court erred by denying her motion for continuance.
The decision to grant a continuance rests within the sound discretion of the trial court. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). But the United States Supreme Court has recognized that a denial of continuance may be so arbitrary as to violate a litigant's right to due process. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849-50, 11 L. Ed. 2d 921 (1964); Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 802 (Tex.App.-Corpus Christi 2002, pet. denied). We must review the circumstances before the judge at the time of denial to determine whether the decision was so arbitrary as to violate due process. Ungar, 376 U.S. at 589, 84 S.W.3d at 850; Struve, 79 S.W.3d at 802.
K.D. was just two months old when she was entrusted to the care of her paternal aunt following allegations of neglect, homelessness, and drug abuse by both parents. The child was ultimately placed in foster case. Both parents were, at the time of trial, incarcerated in a federal penitentiary on drug charges. The judge issued a bench warrant to attempt to secure their presence. However, federal authorities refused to grant Hurt a transfer pursuant to the warrant. Hurt moved for a continuance to delay trial until she was released or her deposition could be taken. The court denied the motion but agreed to pay for a deposition to be taken while the proceedings continued (while acknowledging the difficulties of taking the deposition of a federal inmate).
Federal regulations provide broad discretion to regional counsel and the warden in determining whether to transfer a federal prisoner to state custody for a civil trial. 28 C.F.R. § 527.31.
The absence of a parent at a trial to terminate her parental rights could leave the factfinder with the impression that the parent deems the matter unimportant. In re J.D.S., 111 S.W.3d 324, 327 (Tex.App.-Texarkana 2003, no pet.). "Furthermore, because of the obvious negative connotations associated with a parent who is incarcerated, it is important for the fact-finder to witness the demeanor and credibility of the parent." Id. It is well established that litigants cannot be denied access to the courts simply because they are inmates. Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198, 82 L. Ed. 2d 393 (1984). However, this right is not absolute. In re Z.L.T. 124 S.W.3d 163, 165 (Tex. 2003). In determining an inmate's right to appear in court, a court must balance the prisoner's interest in appearing against the impact on the correctional system. Id. It is the inmate who bears the burden of proving her presence is a necessity. Id. at 166. A key factor to consider is whether the inmate can appear and participate through counsel. See In re K.M.H., 181 S.W.3d 1, 12 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
Hurt's continuance motion contained no statement as to the testimony Hurt expected to offer as required by the Rules of Civil Procedure. TEX. R. CIV. P. 252. Failure to comply with the procedural rules results in a presumption that the trial court did not abuse its discretion in denying the motion. See In re Z.A.T., 193 S.W.3d 197, 208 (Tex.App.-Waco 2006, pet. denied); In re E.L.T., 93 S.W.3d 372, 375 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
The circumstances of the motion warrant denial despite due process concerns. The motion is speculative as to any necessity for Hurt's testimony, there was no notice of deposition for Hurt, the dismissal date for the case was impending, and the State has a substantial interest in providing a permanent and stable home for K.D. In addition, Hurt was able to participate through her attorney. "[T]he right of a prisoner to have access to the courts entails not so much his personal presence as the opportunity to present evidence or contradict the evidence of the opposing party." In re D.D.J., 136 S.W.3d 305, 313-14 (Tex.App.-Fort Worth 2004, no pet.) (quoting Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex.App.-Houston [1st Dist.] 2000, no pet.)).
The court granted Hurt's motion for a bench warrant. In a pretrial hearing following notification that the warrant would not be honored, the court also determined that telephonic means of providing for Hurt's testimony were not possible and agreed to pay for her deposition to be taken. This is not a case in which the court summarily denied Hurt any access to the court. Cf. J.D.S., 111 S.W.3d at 328. Because the court adequately balanced the interests of the State and the federal correctional system with those of Hurt, it was not a denial of due process to proceed without Hurt present in the courtroom. See Z.L.T., 124 S.W.3d at 166. Thus, we cannot say that the trial court abused its discretion in denying the motion to continue. We overrule Hurt's first issue.
The judgment is affirmed.