Edward Claude Corning v. Texas Department of Protective and Regulatory Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00009-CV Edward Claude Corning, Appellant v. Texas Department of Protective and Regulatory Services, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT NO. JUV93-0345-C-1, HONORABLE DICK ALCALA, JUDGE PRESIDING Appellant Edward Claude Corning appeals from a decree terminating his parent-child relationship with his daughter, K.C., and appointing appellee Texas Department of Protective and Regulatory Services (the Department) permanent managing conservator. We will affirm the decree of termination. BACKGROUND K.C. was eight years of age at the time of trial. She had lived with both her parents until August 1991, when she was approximately fifteen months old. At that time, Corning was arrested and incarcerated, and K.C.'s mother took K.C. to live with Corning's mother, Elida Ramirez. (1) Corning remained in prison until July 1994, when he was paroled to a substance abuse treatment center in Midland, Texas. On August 11, 1994, K.C., who was then four years of age, was removed from Ramirez's home and placed in the Department's temporary managing conservatorship, where she remained until trial in August 1998. (2) The Department notified Corning one week later of K.C.'s whereabouts. Corning was released from the treatment center in October 1994, at which time he returned to his home in San Angelo. In February 1995, Corning approached a Department representative about the child. The representative advised appellant to make an appointment to discuss the matter, but he failed to do so. Subsequently the Department made attempts to locate him but was unable to do so despite repeated efforts. According to a Department caseworker, Corning had no contact with K.C. from August 1991 until July 1995, although he contends that he had one contact with the child in Ramirez's home in late July or early August 1994. In June 1995, Corning went to the Department's office, and the Department presented him a service plan, the goal of which was reunification with K.C. Corning did not sign the plan, though the Department advised him that failure to agree to a service plan could result in termination of his parental rights. The Department asked Corning to visit K.C. under a therapist's supervision. Corning initially complied and visited K.C. three times in July 1995. A Department caseworker testified that Corning was generally defiant, defensive, and uncooperative during those visits and at one point was belligerent towards a caseworker. As a result, the Department reduced his visitations from every week to every two weeks. After July 1995, Corning stopped attending the Department's scheduled visits. Corning sporadically visited K.C. under the supervision of another therapist until August 1996. During one such visit in August 1996, Corning apparently tried to initiate an unauthorized contact with K.C.'s mother. Following that visit, the Department filed a report informing the court what had happened and suggesting that the visits be further reduced. The court never acted on that suggestion, and the Department never reduced the visitations. Nevertheless, Corning stopped visiting K.C. entirely after the report was filed. In February 1997, Corning was arrested for possession of marihuana and Amitriptyline, a controlled substance. He posted bond and was released from jail the day following his arrest but was subsequently re-arrested in May 1997 for violating the terms of his parole. He remained incarcerated at the time of trial. On June 12, 1997, the Department filed its termination action alleging constructive abandonment under section 161.001(1)(N) of the Texas Family Code. Following the termination hearing on August 31, 1998, the trial court found that: (1) Corning constructively abandoned K.C., who had been in the temporary managing conservatorship of the Department for not less than one year; (2) the Department made reasonable efforts to return K.C. to Corning; (3) Corning did not visit or maintain contact with K.C.; (4) Corning demonstrated an inability to provide K.C. with a safe environment within the meaning of section 161.001(1)(N) of the Family Code; and (5) termination of the parent-child relationship between Corning and K.C. was in K.C.'s best interest. The court's findings track the requirements of Texas Family Code section 161.001(1)(N) and (2). (3) In his sole issue, Corning contends that the evidence is factually insufficient to support the trial court's finding that he failed to visit or maintain contact with K.C. Accordingly, we limit our discussion to Corning's sole complaint. STANDARD OF REVIEW We review the trial court's findings of fact for factual sufficiency by the same standard we apply in reviewing the factual sufficiency of the evidence supporting jury findings. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). As the party seeking termination, the Department had the burden to prove by clear and convincing evidence all the elements warranting termination. See In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); Neal v. Texas Dep't of Human Servs., 814 S.W.2d 216, 222 (Tex. App.--San Antonio 1991, writ denied). The clear and convincing standard of proof requires "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 G.M., 596 S.W.2d at 847. The clear and convincing standard of proof required to terminate parental rights does not alter the appropriate standard of appellate review. See State v. Turner, 556 S.W.2d 563, 565 (Tex. 1977); D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ). (4) In deciding whether the evidence is factually sufficient, this Court considers and weighs all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986). DISCUSSION A court may terminate a parent-child relationship if it finds that: (1) the parent has engaged in any of the specific conduct enumerated in the Family Code as grounds for termination; and (2) termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001(1), (2) (West 1999); Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); D.O. v. Texas Dep't of Human Servs., 851 S.W.2d at 352. Here, the trial court found Corning had committed constructive abandonment, which is a ground for termination under section 161.001(1)(N). Corning contends that the evidence adduced at trial was factually insufficient to support the trial court's finding that he had failed to visit or maintain contact with K.C.--an element of constructive abandonment. The evidence is undisputed that Corning did not visit or contact K.C. after August 1996 and made no effort to do so. Corning argues that, because he thought that the Department's report recommending a reduction in visitations meant that he could not see K.C. anymore, the evidence was factually insufficient to support the trial court's finding that he constructively abandoned K.C. We disagree. After August 1996, Corning never contacted the Department to confirm the effect of the report, nor did he seek the advice of his own lawyer as to what the report meant. It is well settled that ignorance of the law does not excuse action or inaction. See, e.g., Allstate Ins. Co. v. King, 444 S.W.2d 602, 605 (Tex. 1969); Bean v. State, 691 S.W.2d 773, 777 (Tex. App.--El Paso 1985, writ ref'd). By the same logic, misinterpretation of a report cannot excuse Corning's failure to maintain contact with K.C. Reviewing the record, we find abundant evidence to support the trial court's finding that Corning did not visit or maintain contact with K.C. Corning only lived with K.C. for the first fifteen months of her life. He failed to visit or contact K.C. from October 1994 to May 1995 and again from August 1996 until the time of his imprisonment in May 1997, despite the fact that they lived in the same town. After his three July 1995 supervised Department visits, he had only a handful of visits with her until August 1996. The entire time he was incarcerated, Corning never called K.C. or wrote her directly, though he testified that he was allowed to write letters while he was in prison. Imprisonment of a parent, standing alone, does not constitute abandonment of a child as a matter of law, but neither does it preclude a finding of abandonment. See Jordan v. Hancock, 508 S.W.2d 878, 881 (Tex. Civ. App.--Houston [14th Dist.] 1974, no writ). Rather, it is evidence to be considered by the trier of fact. While the incarceration itself may not amount to abandonment, Corning's course of conduct that led to his imprisonment may suffice. Evidence that a parent "entered into a course of willful criminal activity with knowledge of . . . the possible consequences of his course of conduct implied a conscious disregard and indifference to his parental responsibilities and the subsequent imprisonment for such conduct constituted . . . abandonment." Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 807 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). At the time of trial, Corning had been incarcerated for roughly half of K.C.'s life. However, his imprisonment was not continuous. From the time of his release from the substance abuse treatment center in October 1994 until his incarceration in May 1997, Corning had ample opportunity to visit his daughter. Moreover, Corning admitted knowing that committing any criminal offense would violate the terms of his parole and could result in his being sent back to prison. The fact that he was arrested in February 1997 for possession of marihuana and Amitriptyline, and again in May 1997 for violating parole, is evidence of Corning's "conscious disregard and indifference to his parental responsibilities." Id. We overrule Corning's sole issue and hold that the trial court's termination decree is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We affirm the judgment of the trial court. Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Kidd and Patterson Affirmed Filed: October 7, 1999 Do Not Publish 1. The trial court also terminated the parental rights of K.C.'s mother, Myong Huy Yie. Yie did not appear at trial and does not appeal the decree. 2. K.C. was removed from her grandmother's home because a sexual offender lived in the house. Neither Corning nor Ramirez contests that removal. 3. The Department alleged that K.C. had been in its temporary managing conservatorship for not less than one year, as the statute then required. Act of June 16, 1995, 74th Leg., R.S., ch. 751, § 65, 1995 Tex. Gen. Laws 3888, 3911 (Tex. Fam. Code Ann. § 161.001(1)(N), since amended). By the time of trial, the statute had been amended to reduce the time requirement to "not less than six months." Tex. Fam. Code Ann. § 161.001(1)(N) (West 1999). Corning argues that application of the new subsection (N) would violate article 1, section 16 of the Texas Constitution. Corning did not raise this objection at trial. Moreover, the trial court specifically found that K.C. had been in the temporary managing conservatorship of the Department for not less than one year, and Corning does not challenge this finding on appeal. 4. Corning urges us to employ a higher standard of review as used by the El Paso court of appeals in Edwards v. Texas Department of Protective and Regulatory Services, 946 S.W.2d 130 (Tex. App.--El Paso 1997, no writ). That court concluded that cases with a higher evidentiary standard at trial require a stricter standard of appellate review. Corning urges this Court to adopt Edwards' reasoning and apply a stricter standard of review. In D.O., we recognized that many courts have described an intermediate standard of appellate review, but we determined such a standard to be incorrect. See 851 S.W.2d at 353. Therefore, we will apply the traditional factual sufficiency standard to the evidence here. e entire time he was incarcerated, Corning never called K.C. or wrote her directly, though he testified that he was allowed to write letters while he was in prison. Imprisonment of a parent, standing alone, does not constitute abandonment of a child as a matter of law, but neither does it preclude a finding of abandonment. See Jordan v. Hancock, 508 S.W.2d 878, 881 (Tex. Civ. App.--Houston [14th Dist.] 1974, no writ). Rather, it is evidence to be considered by the trier of fact. While the incarceration itself may not amount to abandonment, Corning's course of conduct that led to his imprisonment may suffice. Evidence that a parent "entered into a course of willful criminal activity with knowledge of . . . the possible consequences of his course of conduct implied a conscious disregard and indifference to his parental responsibilities and the subsequent imprisonment for such conduct constituted . . . abandonment." Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 807 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). At the time of trial, Corning had been incarcerated for roughly half of K.C.'s life. However, his imprisonment was not continuous. From the time of his release from the substance abuse treatment center in October 1994 until his incarceration in May 1997, Corning had ample opportunity to visit his daughter. Moreover, Corning admitted knowing that committing any criminal offense would violate the terms of his parole and could result in his being sent back to prison. The fact that he was arrested in February 1997 for possession of marihuana and Amitriptyline, and again in May 1997 for violating parole, is evidence of Corning's "conscious disregard and indifference to his parental responsibilities." Id. We overrule Corning's sole issue and hold that the trial court's termination decree is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We affirm the judgment of the trial court. Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Kidd and Patterson Affirmed Filed: October 7, 1999 Do Not Publish 1. The trial court also terminated the parental rights of K.C.'s mother, Myong Huy Yie. Yie did not appear at trial and does not appeal the decree. 2. K.C. was removed from her grandmother's home because a sexual offender lived in the house. Neither Corning nor Ramirez contests that removal. 3. The Department alleged that K.C. had been in its temporary managing conservatorship for not less than one year, as the statute then required. Act of June 16, 1995, 74th Leg., R.S., ch. 751, § 65, 1995 Tex. Gen. Laws 3888, 3911 (Tex. Fam. Code Ann. § 161.001(1)(N), since amended). By the time of trial, the statute had been amended to reduce the time requirement to "not less than six months." Tex. Fam. Code Ann. § 161.001(1)(N) (West 1999). Corning argues that application of the new subsection (N) would violate article 1, section 16 of the Texas Constitution. Corning did not raise this objection at trial. Moreover, the trial court specificall