
Opinion issued March 15, 2007







 




In The
Court of Appeals
For The
First District of Texas



NO. 01-05-00752-CV



MALCOLM TROY EARVIN, Appellant

V.

DEPARTMENT OF FAMILY AND 
PROTECTIVE SERVICES, Appellee



On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2004-07007J



O P I N I O N



	Following a bench trial, the trial court terminated the parental rights of
Malcolm Troy Earvin, appellant, to his minor child, S.M.E., a/k/a S.S.M.  In four
points of error, Earvin argues that (1) the evidence is legally insufficient to support
the trial court's decision to terminate his parental rights; (2) the evidence is factually
insufficient to support the trial court's decision to terminate his parental rights; (3)
his due process rights under the Fourteenth Amendment to the United States
Constitution were violated by the court's termination of his parental rights; and (4)
the court erred in naming appellee, the Department of Family and Protective Services
(the Department), the sole managing conservator of S.M.E.
	 We affirm in part, and reverse and render in part.
Background
	 Earvin is the father of S.M.E.  Earvin was dating S.M.E.'s mother at the time
S.M.E. was conceived, but when Earvin learned of the mother's drug use, he broke
up with her.  S.M.E. was born with cocaine in her system in December 2003.  After
birth, both S.M.E. and the mother were transferred to a drug abuse treatment center. 
During this time, Earvin visited S.M.E., and brought her clothes, food, milk, and other
things.  During weekend releases, S.M.E. and her mother would stay with Earvin. 
Once the two were permanently released from the treatment center, Earvin was not
able to get in contact with them and did not know where they were.
	In March of 2004, Earvin sustained a severe injury to his leg, causing him
much pain, limiting his mobility, and requiring substantial physical therapy.  During
this time, Earvin was unable to work.  Three weeks before the trial, Earvin started
working again.
	In August of 2004, the Department found the mother and S.M.E. living in
squalid conditions.  The mother was using drugs again.  The Department obtained
temporary custody of S.M.E.  Earvin was notified, and he attended the show cause
hearing.
	At the hearing, the court ordered Earvin to comply with all service plans
developed by the Department in order to regain custody of S.M.E.  Earvin failed to
comply with almost all of the requirements in the Department's service plans.  At the
trial to terminate parental rights, the trial court ordered that Earvin's parental rights
be terminated based on subsections 161.001(1)(D), (E), and (N) of the Family Code.
Legal  Sufficiency
	In his first point of error, Earvin argues that the evidence is legally insufficient
to support the trial court's termination of his parental rights.
A.  	Standard of Review
	The burden of proof at trial in parental-termination cases is by clear and
convincing evidence.  Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2006); In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).  Section 161.001 of the Texas Family Code
provides the method by which a court may involuntarily terminate the parent-child
relationship.  Tex. Fam. Code Ann. § 161.001.  Under this section, a court may order
the termination of the parent-child relationship if the court finds, by clear and
convincing evidence, that (1) one or more of the acts enumerated in subsection
161.001(1) was committed and (2) termination is in the best interest of the child.  Id. 
"Clear and convincing evidence" means the measure or degree of proof that 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.  Tex. Fam. Code. Ann. § 101.007 (Vernon
2002); J.F.C., 96 S.W.3d at 264.  This heightened burden of proof results in a
heightened standard of review.
	When determining legal sufficiency, we review 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."  J.F.C., 96 S.W.3d
at 266.  To give appropriate deference to the factfinder's conclusions, we must
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so.  Id.  We disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.  Id.  This does not
mean that we must disregard all evidence that does not support the finding.  Id. 
Disregarding undisputed facts that do not support the finding could skew the analysis
of whether there is clear and convincing evidence.  Id.  Therefore, in conducting a
legal-sufficiency review in a parental-termination case, we must consider all of the
evidence, not only that which favors the verdict.  See City of Keller v. Wilson, 168
S.W.3d 802, 817 (Tex. 2005).	The natural rights that exist between parents and their children are of
constitutional dimension.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). 
Therefore, termination proceedings should be strictly scrutinized, and the involuntary
termination statutes should be strictly construed in favor of the parent.  Id. at 20-21. 
However, "[j]ust as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional and
physical interests of the child not be sacrificed merely to preserve that right."  In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002).
B.	Knowingly Allowing the Child to Remain in Dangerous Conditions and
Endangering the Child: Sections 161.001(1)(D), (E)

	The Department does not argue that the evidence is legally and factually
sufficient to support a determination that Earvin had violated subsections 161.001(D)
or (E).  Nor do we find that such a determination is possible.  To support a ruling to
terminate parental rights based on subsection 161.001(1)(D), the Department was
required to prove that Earvin "knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional
well-being of the child."  See Tex. Fam. Code Ann. § 161.001(1)(D).  To support a
ruling to terminate parental rights based on subsection 161.001(1)(E), the Department
was required to prove that Earvin "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 id. § 161.001(1)(E).
	Earvin testified without contradiction that while S.M.E. and her mother were
in the drug abuse treatment center, he brought S.M.E. clothes, food, and milk.  On the
weekends that S.M.E. and her mother were released from the treatment center, they
would stay with Earvin at Earvin's mother's home.  Earvin stated that after S.M.E.
and her mother were released from the treatment center, the mother disappeared and
he did not know where she and S.M.E. were.
	The Department argues that Earvin lost contact with S.M.E. and her mother
when they left the treatment center and it shows that "he was well aware his child was
in a precarious situation on the streets with a mother who had drug problems, yet he
took no action to protect that child."  This is not a proper characterization of the
evidence, however.  Earvin testified that when the mother left the treatment center,
he could not get in contact with her or S.M.E. because he did not know where they
were.  When he finally tracked them down, S.M.E. was already in the custody of the
Department.  None of this evidence suggests that Earvin took no action to protect
S.M.E., that Earvin endangered the child, or that he knowingly allowed the child to
be endangered.  There is no other evidence in the record to establish that Earvin
knowingly endangered S.M.E. or knowingly allowed her to be endangered.
C.	Constructive Abandonment: Section 161.001(1)(N)
	To support a ruling to terminate parental rights based on subsection
161.001(1)(N), the Department was required to prove that (1) the child has been
under the conservatorship of the Department for not less than six months; (2) the
Department has made reasonable efforts to return the child to the parent; (3) the
parent has not regularly visited or maintained significant contact with the child; and
(4) the parent has demonstrated an inability to provide the child with a safe
environment.  Id. § 161.001(1)(N).  While we agree with the Department that the first
three elements of constructive abandonment have been met, we do not agree that the
Department met its burden on the fourth element.
	As proof that it met its burden on the fourth element, the Department points to
the following facts: (1) Earvin knew S.M.E.'s mother was on drugs while she was
pregnant with S.M.E.; (2) Earvin did not attempt to take custody of S.M.E. while she
and the mother were in the drug abuse treatment center; (3) Earvin "likely" had little
interaction with S.M.E. after his severe leg injury; (4) Earvin took no action after
determining that S.M.E. and her mother were "out on the street"; and (5) Earvin made
little effort to visit the child.
	The fifth fact goes to the third element of constructive abandonment, and it
does not show, as the statute requires, that Earvin has demonstrated an inability to
provide the child with a safe environment.  The third and fourth facts are based on
speculation.  Earvin testified that while the child was in the hospital and the treatment
center, he visited her regularly and brought her clothes, food, and milk, and that on
the weekends, when the two were released from the treatment center, they would stay
with Earvin.  Once S.M.E. and her mother were permanently released from the
treatment center, Earvin testified that he could not contact them and did not know
where they were.  None of this establishes that he purposefully had little interaction
with S.M.E. or that he took no action after they left the treatment center.
	The first and second facts are similarly unconvincing.  The Department cites
no authority that a parent has an obligation to attempt to take custody of a child when
the mother is in a treatment center and subsequently released.  Nothing in the record
indicates that Earvin was aware of the severity of the mother's drug use or knew or
should have known that the mother would resume drug use after being released from
the treatment center.
	What the record does show, however, is that Earvin cared for S.M.E. while the
mother was in the hospital and the treatment center, that Earvin had access to a home
to provide for S.M.E., and that he had obtained a job three weeks before trial.  Even
if the trial court, as the trier of fact, chose to disbelieve Earvin's testimony as not
credible, this does not prove that the opposite is true.  See Lozano v. Lozano, 52
S.W.3d 141, 150 (Tex. 2001); Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126,
143 (Tex. App.--Houston [14th Dist.] 2001, pet. denied).
D.	Failure to Comply with a Court Order
	In its brief, the Department argues that we can affirm based on subsection
161.001(1)(O), a ground not listed in the decree.  We, however, are restricted to
reviewing the sufficiency of the evidence presented under the specific statutory
grounds found by the trial court in its termination decree.  See Cervantes-Peterson 
v. Dep't of Family & Protective Servs., No. 01-05-00307-CV, __S.W.3d__, 2006 WL
2195241, at *6 (Tex. App.--Houston [1st Dist.] Aug. 3, 2006, no pet.).  Thus, we do
not consider whether or to what extent Earvin failed to comply with the court ordered
service plan.



	We hold that the evidence is legally insufficient to support a ruling that Earvin
violated subsections 161.001(1)(D), (E), and (N) as found in the decree.  We sustain
Earvin's first point of error. (1)
           Our reversal of the portion of the trial court's judgment denying Earvin's 
parental rights, in effect, results in a denial of the portion of the Department's petition
seeking termination of Earvin's parental rights.  Under Section 161.205 of the Family
Code, if the court does not order termination of the parent-child relationship, the court
shall (1) deny the petition for termination or (2) render any order in the best interest
of the child.  See Tex. Fam. Code Ann. § 161.205 (Vernon 2002).  Furthermore,
section 263.404 of the Family Code allows the court to appoint the Department as
managing conservator of a child without terminating parental rights if the court finds
that appointing the parent or a relative would not be in the best interest of the child.
See id. § 263.404 (Vernon 2002).
             In contrast to the facts presented in recent decisions of this Court, in which
we remanded the case to the trial court, the trial court here made the required best-interest findings to support the appointment of the Department as sole managing
conservator of S.M.E.  Cf. Colbert v. Dep't of Family & Protective Servs., Nos. 01-04-01232-CV, 01-04-01233-CV, 01-05-00124-CV, 01-05-00126-CV, 01-05-00127-CV, 2006 WL 3752371, at *15 (Tex. App.--Houston [1st Dist.] Dec. 21, 2006, no
pet.) (trial court made no findings to support appointment of DFPS as conservator);
Walker v. Dept. of Fam. and Protective Servs. No. 01-06-00253-CV, 2006 WL
3751456, at *3 (Tex. App.--Houston [1st Dist.] Dec. 21, 2006, no pet.) (trial court
appointed DFPS as managing conservator without findings to support appointment). 
 Because the trial court has already effectively satisfied the requirements of sections
161.205 and 263.404 of the Family Code, we need not remand this case to the trial
court to render an order based on the best interest of the child.  Therefore, we reverse
and render judgment denying the Department's petition for termination of Earvin's
parental rights.
Naming the Department the Sole Managing Conservator
	In his fourth point of error, Earvin argues that the evidence is insufficient to
support the court's  appointment of the Department as the sole managing conservator
of S.M.E.
A.	Standard of Review
	We give wide latitude to a trial court's decision on custody, control,
possession, and visitation matters.  Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982); Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.--Houston [1st Dist.] 2001,
no pet.).  We will reverse the trial court's order regarding custody, control, possession
and visitation only if it appears from the record as a whole that the trial court abused
its discretion.  Gillespie, 644 S.W.2d at 451.   A trial court abuses its discretion when
it acts arbitrarily or unreasonably, without reference to any guiding rules or
principles.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We view the
evidence in the light most favorable to the trial court's decision and indulge every
legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703,706
(Tex. App.--Houston [1st Dist.] 1993, writ. denied)
B.	Analysis
	Earvin argues that because the evidence is insufficient to terminate his parental
rights, "it follows that it was not in the child's best interest that the Department be
appointed sole managing conservator of" R.K.G. and S.M.E.  We do not agree,
however, that reversal of a termination of parental rights requires a reversal of the
appointment of the Department as the sole managing conservator.  
       In its Second Amended Petition, not only did the Department request that the trial
court terminate appellant's rights under Chapter 161 of the Family Code, the
Department also petitioned the court, pursuant to sections 153.005, 153.131 and
263.404 of the Family Code, to appoint the Department as the sole managing
conservator of R.K.G. and S.M.E., alleging that appointment of the parent would not
be in the best interest of the child.  The court found that appointment of Earvin would
not be in the best interest of S.M.E. "because the appointment would significantly
impair the [child's] physical health or emotional development" and appointed the
Department as sole managing conservator.  Thus, appointment of the Department as
conservator was independent of the termination of Earvin's parental rights. 
Accordingly, appointment of the Department as the sole managing conservator
requires independent analysis.
	 While there was not clear and convincing evidence to support a determination
that Earvin knowingly placed or allowed the child to remain in conditions that would
endanger the physical or emotional well-being of the child or demonstrated an
inability to provide S.M.E. with a safe environment, there was sufficient evidence that
Earvin was not willing to provide S.M.E. with an environment that was in the best
interest of the child.
	According to the court-ordered service plan established by the Department,
Earvin was required to attend parenting training courses, submit to random drug tests,
and participate in counseling.  The record reflects that Earvin did not attend parenting
classes or participate in counseling.  He submitted to only one drug test. 
Additionally, in the time that S.M.E. was under temporary conservatorship of the
Deparmtent, Earvin visited her only once.
	His explanations for his inaction were that (1) the Department never told him
where he could receive drug evaluations and psychological evaluations, although he
testified that the Department did tell him where he could take parenting classes; (2)
he had to care for his sick mother; and (3) he severely injured his leg in March of
2004.  Earvin testified that his mother had a mild heart attack and was in the hospital
from February 2005 to June 2005 and that he had to care for her during this time. 
Earvin sustained a severe injury to his leg in March of 2004.   Subsequently, he had
to attend physical therapy two to three times a week.  Earvin was able to get friends
to take him to and from the physical therapy.
	The one time Earvin visited S.M.E. was in December 2004.  Another visitation
was arranged in February 2005.  Earvin cancelled that meeting because his mother
was unable to attend and he had wanted her to come along.  Earvin testified that he
wanted to reschedule the visitation but that he "never did get around to it." 	           
       According to Earvin's own testimony, he was able to care for his mother in the
hospital and attend physical therapy for his leg, but was unable to schedule and attend
drug evaluations, psychological evaluations, parenting classes, or visitations with his
daughter.  The trier of fact is the exclusive judge of the credibility of the witnesses
and the weight to be given to their testimony. Nordstrom v.Nordstrom, 965 S.W.2d
575, 580 (Tex. App.--Houston [1st Dist.] 1997, pet. denied).  It was entirely within
the trial court's discretion to determine that Earvin was not willing to provide an
environment conducive to his daughter's physical health and emotional development
and that appointment of the Department as sole managing conservator was in the best
interest of the child.
            Viewing all the evidence in a light most favorable to the trial court's decision,
we cannot say that the trial court's judgment was arbitrary or unreasonable. 
Accordingly, we hold that the trial court did not abuse its discretion in appointing the
Department as the sole managing conservator of S.M.E.
           We overrule Earvin's fourth point of error.
CONCLUSION

       We affirm the portion of the decree assigning the Department as the sole
managing conservator of S.M.E.  See Tex. Fam. Code Ann. § 263.404.  We reverse
the portions of the decree related to the termination of Earvin's parental rights and
render judgment denying the Department's petition for termination of Earvin's
parental rights.  See id. §161.205.
 

							Laura Carter Higley
							Justice

Panel consists of Justices Jennings, Hanks, and Higley.

Justice Jennings, concurring. 
1. 	Because Earvin's first point of error disposes of his second and third points of error,
we need not reach them.
