      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00480-CV



                                      Eric Loper, Appellant

                                                 v.

                        Texas Department of Protective and Regulatory
                                Services and C.L., Appellees




           FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
               NO. 01-0839, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING




                            MEMORANDUM OPINION


               Appellant Eric Loper appeals a district-court judgment terminating his parental

rights to his minor child, appellee C.L.,1 approximately age two at the time of trial. Appellee the

Child Protective Services division of the Texas Department of Protective and Regulatory

Services (ACPS@) filed a petition for termination of Loper=s parental rights. See Tex. Fam. Code

Ann. '' 101.032, 161.001 (West 2002). After a bench trial, the district court terminated Loper=s

parental rights to C.L. In his only issue on appeal, Loper asserts that the evidence is legally and

factually insufficient to establish the statutory grounds for termination. We will affirm.


       1
         The decree also terminated the parental rights of Lauren Loper to her daughter, C.L. Lauren
Loper has not appealed. We thus do not address the termination of her parental rights.
                                           BACKGROUND

                By his only issue on appeal, Loper argues that the evidence against him was legally

and factually insufficient to terminate his parental rights.

                CPS removed C.L. from her parents= home and took custody of her after receiving

multiple referrals regarding the child. First, CPS received a referral alleging Loper neglectfully

supervised C.L. in February 2001. This referral came after an Austin police officer arrested

Loper and charged him with child endangerment, after finding Loper pulled over to the side of the

road, apparently Aunder the influence,@ and with C.L. in the vehicle.2 Loper=s employer

terminated Loper=s employment after he arrived at work Aunder the influence.@ 3 In this condition,

Loper had driven with C.L. in the car to his job site, requiring his employer to drive Loper home

and place C.L. in the care of neighbors.




        2
          The record does not indicate the substance of which Loper was under the influence, but Austin
police noted that Loper Aappeared glassy eyed and his speech was very slow.@
        3
          Again, the record does not indicate the substance of which Loper was under the influence, but the
record notes that the employer Awas so concerned about Mr. Loper=s inability to drive, he refused to allow
him to get into his car.@




                                                    2
               On May 1, CPS received three additional referrals alleging neglectful supervision

of C.L. by Loper and his wife, C.L.=s mother, Lauren Loper. Loper was observed driving

erratically, running off the highway into the grass, and eventually turning into an Austin grocery

store parking lot. Observers saw Loper exit his vehicle, urinate in the parking lot, stagger into

the store, and leave then one -year-old C.L. alone in the car. When an Austin police officer

arrived at the grocery, he detained Loper and discovered store merchandise in Loper=s pockets.

Although Loper=s blood-alcohol level was only .02, he failed a field sobriety test. Loper refused a

blood test. Police arrested Loper for child endangerment and driving while intoxicated. Loper=s

mother retrieved C.L. from the police station. Two days later, C.L.=s maternal great-grandmother

attended a birthday party for Lauren Loper at the Loper home. She noticed what appeared to be

fresh needle track marks on Loper=s arms and feet, indicating the use of drugs.

               CPS asked for, and the district court entered, an AOrder for Protection of a Child in

an Emergency.@ The district court appointed CPS as C.L.=s temporary managing conservator and

placed C.L. with her maternal grandmother, Rebecca Dallman. In July the district court held an

adversarial hearing on CPS=s request for temporary orders and found that returning C.L. to the

Loper home posed a continued risk to her physical health and safety. The district court ordered

Loper to: (1) visit with C.L. on a weekly basis, during which time Loper was to remain drug-and-

alcohol free; (2) submit to a psychological evaluation; (3) attend and complete counseling

sessions; (4) successfully complete parenting classes; (5) submit to drug and alcohol assessments

and random drug testing; (6) maintain secure, stable housing and employment; and (7) maintain a


                                                 3
drug-and-alcohol-free lifestyle. At a later status hearing, the district court ordered that Loper pay

$100 per month in child support for C.L. The district court held a hearing in December to review

the conservatorship appointment and placement of C.L. Loper failed to attend the hearing.

                Loper failed to comply with many of the district court=s directives. Loper did

submit to the psychological evaluation and the drug-and-alcohol assessments. However, he failed

to comply with an intensive outpatient program, after being expelled for refusing to comply with

all of the random drug tests and producing some Adirty@ specimens. Further, he failed to attend

any therapy sessions recommended after his psychological evaluation. Loper was dismissed from

the parenting classes after exhibiting behavior consistent with drug use and testing positive for

opiates during a urinalysis. Loper failed to make any of the ordered child-support payments. Of

forty available weekly visitations with C.L., Lope r took advantage of only ten. He failed to visit

C.L. at any time during the period between October 2001 and the April 2002 termination

proceedings. Loper also failed to maintain stable housing or employment. In February 2002, CPS

placed C.L. with her maternal uncle, Dillon Howard, and his fiancee, Nicole Meadows, who intend

to adopt C.L.

                At the termination proceedings, Loper was called to testify. Loper testified only to

his name, his age, his date of birth, and the fact that he was C.L.=s father. Loper asserted his

Fifth Amendment right against self-incrimination on all other matters. See U.S. Const. amend. V.

Specifically, he refused to answer questions regarding whether he was incarcerated at the time of

the trial, whether he had been arrested for child endangerment, and whether he had ever engaged


                                                 4
in conduct that would endanger the physical or emotional well-being of C.L. Loper offered no

other evidence to controvert allegations regarding his drug use, his arrests, or his treatment of

C.L.

               Dallman testified that, within a year of the trial, Loper admitted to using heroin and

needing help with his addiction. Dallman said she suspected, on several occasions, that Loper

had been under the influence of drugs. Dallman testified that in early 2001, she found Loper and

his wife under the influence of drugs at their home. She took the two to a counselor and social

worker at the school where she teaches in order to discuss the Lopers = problems with drug

addiction. The counselor and social worker provided Loper and his wife with numerous referrals

for rehabilitation programs.

               Dallman testified that she thought termination of the Lopers = parental rights

served C.L.=s best interest. Dallman said, that although C.L. seemed healthy, she believed the

Lopers placed C.L. in dangerous situations. She also believed the Lopers failed to provide C.L.

with adequate stimulation. Particularly, Dallman noted that the Lopers often stayed out late at

night and slept much of the day, keeping C.L. confined while they slept. Dallman said when C.L.

was not confined, the extreme disarray in the Loper home threatened C.L.=s safety. Dallman

worried that the Lopers= inattention might result in C.L. placing a foreign object in her mouth or

having some other sort of accident.

               CPS caseworker Lori Browning testified that she thought termination of Loper=s

parental rights was in C.L.=s best interest. Browning testified that she believed Loper=s continued


                                                 5
substance abuse greatly diminished his capacity to effectively parent C.L. She expressed

concerns about the stability Loper could offer C.L. because he failed to perform almost all of the

court-ordered programs, failed to remain drug-free, failed to visit C.L. weekly, failed to pay any

child support for C.L., and failed to maintain stable housing and employment. Browning also

testified that Loper=s current incarceration posed a threat to the stability and permanency C.L.

needs in her home life.

               The district court ruled that the parent-child relationship between Loper and C.L.

should be terminated because Loper knowingly placed or knowingly allowed the child to remain in

conditions or surroundings that endangered the physical or emotional well-being of the child. See

Tex. Fam. Code Ann. ' 161.001. The court determined that termination of the parent-child

relationship was in the child=s best interest.


                                          DISCUSSION

Standard of Review

               The natural right existing between a parent and child is of constitutional dimension.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The United States Supreme Court has

characterized the right to raise one =s child as essentialCa basic civil right far more precious than

property rights. Stanley v. Illinois, 405 U.S. 645, 651 (1972). Because the involuntary

termination of parental rights is complete, final, and irrevocable, termination proceedings must be

strictly scrutinized. Holick, 685 S.W.2d at 20.




                                                  6
               A court may terminate parental rights if it finds both of the following: (1) that the

parent has engaged in any of the specific conduct enumerated in the family code as grounds for

termination, and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann.

' 161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). A termination order must be

supported by clear-and-convincing evidence. Tex. Fam. Code Ann. ' 161.001. AClear and

convincing evidence@ means Athe 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 (West 2002); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). This

intermediate standard falls between the usual preponderance of evidence standard in civil cases

and the Abeyond a reasonable doubt@ standard of criminal proceedings. In re G.M., 596 S.W.2d at

847. The fact finder must determine that clear-and-convincing evidence supports both elements;

proof of one element does not relieve the burden of proving the other. Holley v. Adams, 544

S.W.2d 367, 370 (Tex. 1976).

               We review legal sufficiency by considering only the evidence supporting the trial

court=s finding, disregarding evidence contrary to that finding and upholding the finding if any

probative evidence supports it. In re King=s Estate, 244 S.W.2d 660, 661 (Tex. 1951). If more

than a scintilla of probative evidence supports the finding, it must be upheld. See Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965). We will uphold termination findings against factual-sufficiency

challenges if the evidence Ais such that a reasonable [fact finder] could form a firm belief or

conviction that grounds exist for termination under Texas Family Code sections 161.001 and


                                                  7
161.206(a).@ In re C.H., 89 S.W.3d 17, 18-19 (Tex. 2001). Thus, we will not reverse the district

court=s judgment unless the fact finder could not reasonably have formed a firm conviction or belief

that terminating Loper=s parental rights was in C.L.=s best interest. Id. at 25. Applying these

standards of review to the facts before us, we hold the evidence to be both legally and factually

sufficient to sustain the verdict.


Best Interest of the Child

               Loper complains that there is insufficient evidence to support the district court=s

finding that termination of his parental rights serves the best interest of C.L. A strong

presumption exists that preserving the parent-child relationship serves the best interest of the

child. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).

               In Holley, the Texas Supreme Court articulated several factors that trial courts may

consider when determining whether termination serves a child=s best interest: (1) the desires of

the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional

and physical danger to the child now and in the future; (4) the parental abilities of the individuals

seeking custody; (5) the programs available to assist these individuals to promote the best interest

of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7)

the stability of the home or proposed placement; (8) the acts or omissions of the parent, which may

indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or

omissions of the parent. Holley, 544 S.W.2d at 371-72.




                                                 8
               Although this list is not exhaustive, it does include the most important

considerations. Id. at 372. Other factors may be considered when appropriate. Id. Likewise, a

fact finder is not required to consider all of the listed factors. Id. The record in this case contains

evidence regarding several of the Holley factors.


1. The emotional and physical danger to the child

               The record contains evidence of several instances in which Loper placed C.L. in

danger. First, he was arrested for child endangerment after Austin police found him pulled over to

the side of the road and under the influence of some substance, with C.L. in the vehicle. On

another occasion, Loper drove himself and C.L. to his place of employment while he was Aunder

the influence.@ Loper was again arrested by Austin police after driving under the influence of

alcohol with C.L. in the car, staggering into a grocery store, stealing items, and leaving one -year-

old C.L. alone in the vehicle. Dallman=s testimony suggested that Loper had been under the

influence of heroin on several occasions in front of his daughter.

               The general condition of the Loper home also presented a danger to C.L.=s well-

being. Both Dallman and the CPS caseworker testified that the floor was littered with items that

C.L. could either fall upon or place in her mouth.

               The emotional danger presented to C.L. also was testified to by both Dallman and

Browning. Dallman noted that Loper and his wife often stayed out very late at night and slept for

much of the day. While sleeping, the Lopers kept C.L. confined. Dallman testified that she

believed C.L. failed to receive appropriate stimulation from Loper. Browning testified that

                                                  9
Loper=s continued drug use posed a threat to the stability and permanency needed by C.L. She

further addressed concern that Loper=s incarceration threatened C.L.=s emotional needs.


2. Loper=s parental abilities

              The record contains evidence revealing Loper=s deficient parenting skills. As

described above, the Loper home was in extreme disarray and unsafe for a toddler C.L.=s age

when both Dallman and CPS visited. During the day, Loper often kept C.L. confined while he

slept, failing to provide her with stimulation or attention. Testimony from Dallman suggests that

Loper used heroin with C.L. in the home on more than one occasion.

              Loper placed C.L. in physical danger by driving Aunder the influence@ with her in the

car on several occasions. On one of these occasions, Loper left the one -year old alone in a car,

while he urinated in a grocery store parking lot, staggered into the store, and stole merchandise.

              Further, in direct defiance of court orders, Loper failed to visit C.L. for months at a

time, including failing to visit her even once for almost six months before the termination

proceeding. Loper failed to provide any financial support for C.L.=s benefit, again in direct

disobeyance of a court order. Evidence reflects that Loper is incapable of maintaining a drug-free

lifestyle, stable employment, or stable housing. Finally, at the time of trial Loper was again

incarcerated for an indeterminate amount of time.


3. Parenting-assistance programs available to Loper




                                               10
               The district court ordered Loper to attend and complete a nine -week parenting

course. Loper arrived tardy to a number of the classes. Loper completed only six of the nine

weeks because instructors asked him to leave. During the classes, Loper exhibited behavior

consistent with drug use. Loper also tested positive for opiates during one of the class=s

urinalyses.

               Loper did complete a drug-and-alcohol assessment, but he failed to complete a

recommended outpatient rehabilitation program; he missed two classes after being arrested for

burglary of a vehicle and shoplifting. Loper also completed a psychological evaluation, but he

failed to attend any of the individual therapy sessions recommended by the evaluating

psychologist. Testimony from Dallman established that school counselors provided Loper with

referrals for drug treatment and rehabilitation programs. Loper failed to contact any of these

individuals.


4. Plans for the child by Loper or by the agency seeking custody

               Loper presented no evidence to indicate any plans he has for C.L.=s future.

Because he failed to complete his ordered parenting programs, failed to maintain stable

employment or housing, and was incarcerated at the time of the termination hearing, Loper=s

failure to offer evidence of his plans for C.L.=s future complicate his position on this issue.

               CPS presented evidence that C.L.=s current caretakers have expressed plans to

formally adopt C.L. if Loper=s parental rights are terminated. Howard and Meadows currently are

engaged and intend to marry. Howard serves as a flight instructor, and Meadows is a school

                                                11
teacher. CPS produced evidence that the two can, and desire to, offer C.L. a secure, loving home

life. They plan to provide her with financial stability, a drug-free environment, and adequate

emotional support and physical stimulation for a child her age.


5. Stability of the proposed home or proposed placement

                Loper provided no evidence to controvert CPS=s evidence that he failed to provide a

stable home life for C.L. Although under court order to do so, Loper failed to maintain a stable job

or stable housing. The evidence suggests he has failed to remain drug-free. Loper currently is

incarcerated.

                Howard and Meadows both maintain stable employment. They offer stable housing

and financial support for C.L. It appears from the evidence that C.L. has been well-adjusted and

emotionally nurtured while in their care.


6. Acts or omissions by Loper and excuses for those acts or omissions

                A parent=s acts or omissions can also indicate an inappropriate parent-child

relationship. See Holley, 544 S.W.2d at 372. Loper=s driving under the influence of alcohol with

C.L. in the vehicle is an example of an act that casts doubt on Loper=s ability to parent effectively.

Further, Loper=s consistent drug use, dismissal from court-ordered programs, recurring arrests,

and incarceration also suggest Loper=s lack of parenting skills. Loper=s failure to complete court-

ordered programs, to maintain a stable home and employment, to visit C.L., and to provide for C.L.

financially are all omissions that reflect negatively upon Loper=s parenting abilities. Loper=s


                                                 12
failure to stimulate C.L. and his failure to keep his house safe for his daughter also suggest

Loper=s inadequate parenting skills.

               Loper made no attempts to controvert evidence of any of the above discussed acts

or omissions. He failed to follow the district court=s orders, which were intended to indicate his

readiness to have C.L. returned to his care. Further, at trial, Loper asserted his right against self-

incrimination on all questions, including those regarding his fitness as a parent, his previous

treatment of C.L., and his current incarceration. Although this action fell within Loper=s rights, in a

civil case, a fact finder may Adraw reasonable inferences from a party=s assertion of the privilege

against self-incrimination.@ Lozano v. Lozano, 52 S.W.3d 141, 150 (Tex. 2001). Loper provided no

other testimony to excuse any acts or omissions relevant to this matter.


                                          CONCLUSION

               The record conclusively demonstrates that the district court received sufficient

evidence regarding the emotional and physical danger to C.L., Loper=s parenting ability, his failure

to take advantage of offered parenting-assistance programs, his lack of plans for C.L.=s future, the

instability of the home offered by Loper, and Loper=s failure to provide excuses for his acts and

omissions as a parent. Having reviewed all the evidence, we hold there was clear-and-convincing

evidence supporting the district court=s finding that it was in C.L.=s best interest to terminate

Loper=s parental rights. Accordingly, we affirm the district court=s judgment.




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                                             __________________________________________

                                             Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: April 3, 2003




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