NO. 07-00-0138-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL C

	NOVEMBER 10, 2000

	______________________________

	IN THE INTEREST OF A.M. AND C.W., MINOR CHILDREN

	_________________________________

	FROM THE 315TH DISTRICT COURT OF HARRIS COUNTY;

	NO. 98-03640J; HONORABLE KENT ELLIS, JUDGE

	_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

	Appellants Charles Ward and Dana Ward appeal from a judgment rendered by a

jury involuntarily terminating their parental rights.  Specifically, Charles Ward contends

there is (1) no evidence, (2) legally insufficient evidence, and (3) factually insufficient

evidence to support the jury’s findings terminating his parental rights to C.W. only.  Dana

Ward contends there is (1) factually and legally insufficient evidence to support termination

in accordance with section 161.001(D) of the Texas Family Code, (2) factually insufficient

evidence to support termination in accordance with Texas Family Code section 161.001(E), and (3) that termination of the parent-child relationship may not be based solely upon the

best interests of the child for the termination of her parental rights for both minor children

A.M. and C.W.  Based upon the rationale expressed herein, we affirm.

	Before addressing the merits of this appeal, we first set forth the applicable facts. 

Dana Ward (Dana) is the natural mother of both A.M.1 and C.W.,2 and Charles Ward (Charles) is the natural father of C.W. and only had parental rights to C.W.  On the morning

of May 9, 1998, Dana was driving with her daughter A.M. when A.M. made an outcry

statement by stating, “Mommy, daddy sucked me where I pee.”  Upon hearing this, Dana pulled her vehicle over immediately and asked A.M., “what did you say to mommy?”  A.M. repeated herself and Dana asked “did daddy touch down there?” pointing to her private area and A.M. responded “yes.”  Dana then drove to Pasadena Police Department and reported this allegation of sexual abuse.

	The natural right existing between parents and their children is one of a

constitutional dimension.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  Consequently,

termination proceedings must be strictly scrutinized.  In Interest of G.M., 596 S.W.2d 846,

846 (Tex. 1980).  A termination decree is complete, final, irrevocable, and divests for all

time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit.  Holick, 685 S.W.2d at 20.  In proceedings to terminate the parent-child relationship brought under Ssection 161.001 of the

Family Code, the petitioner must establish one or more acts or omissions enumerated

under subsection (1) of the statute, and must additionally prove that termination of the

parent-child relationship is in the best interest of the child.  Tex. Fam. Code Ann. § 161.001

(Vernon Supp. 2000).  Both elements must be established, and proof of one element does

not relieve the petitioner of the burden of proving the other.  See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).  

	Because termination of parental rights is of such weight and gravity, due process

requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.

Code Ann. § 161.001 (Vernon Supp. 2000); In Interest of G.M., 596 S.W.2d at 847.  This standard is defined as 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 or the allegations sought to be

established.  Id.  Although the clear and convincing burden of proof required at the trial level is well settled, appellate courts have struggled to reconcile this burden of proof with

the standard for appellate review of the sufficiency of evidence.  As this Court has

previously noted, the clear and convincing standard does not alter the rules generally

applicable when appellate courts review factual findings.  In Interest of R.D.S., 902 S.W.2d

714, 716 (Tex.App.--Amarillo 1995, no writ). 

Standards of Review--Legal and Factual Sufficiency of the Evidence

	When presented with a challenge to the legal sufficiency of the evidence, the

reviewing court must consider all of the evidence in a light most favorable to the party in

whose favor the finding was rendered indulging every reasonable inference in that party's

favor.  Associated Indem. Corp. v. Cat Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.

1998).  If there is any evidence of probative force to support the finding, the finding must

be upheld.  ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).  In

reviewing a challenge to the factual sufficiency of the evidence, the court must consider,

weigh, and examine all of the evidence of record.  Plas-Tex, Inc. v. U.S. Steel Corp., 772

S.W.2d 442, 445 (Tex. 1989).  The court should only set aside a finding if the evidence

which supports the finding is so weak as to be clearly wrong and manifestly unjust.  Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). 

	In the present case, the trial court ordered termination under sections 161.001(1)(D)

and (E).  These subsections provide for termination if the court finds by clear and

convincing evidence that the parent has: 

     	(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the

child;

	(E) 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.	

	Tex. Fam. Code Ann. § 161.001(1)(D) & (E) (Vernon Supp. 2000).

	The difference between subsection (D) and subsection (E) of this is the cause of the

resulting danger to the child's physical or emotional well-being.  Under subsection (D), it

must be the environment which causes the child's endangerment whereas, under

subsection (E), the cause of danger to the child must be the parents' conduct alone.  In

Interest of S.H.A., 728 S.W.2d 73, 85 (Tex.App.--Dallas 1987, writ ref’d n.r.e.).  "Endanger"

means more than a threat of injury or possible ill effects suffered as a result of a

less-than-ideal family environment; however, for purposes of this statute, it is not

necessary that the conduct be directed at the child or that the child actually suffer injury. 

In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).  It is sufficient that the child's well-being be

jeopardized or exposed to loss or injury, and the specific danger to the child’s well-being

may be inferred from a parent’s misconduct.  Texas Dep't of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).  

	The Family Code also requires that termination be in the best interest of the child. 

Tex. Fam. Code Ann. § 161.001(2) (Vernon 2000).  Factors to be considered when making

the determination as to whether termination is in the child’s best interest include: the

desires of the child, the emotional and physical needs of the child now and in the future,

the emotional and physical danger to the child now and in the future, parenting abilities,

acts or omissions indicating the existing parent-child relationship is not a proper one, and

any excuse for the acts or omissions.  In Interest of B.S.T., 977 S.W.2d 481, 485

(Tex.App.--Houston [14th Dist.] 1998, no writ).  In sum, a finding of a violation of either section (D) or (E), and a finding that termination is in the best interest of the child will

support a judgment terminating the parent-child relationship.

	Charles Ward contends that there is no evidence, or alternatively, that there is legally and

factually insufficient evidence to support the jury verdict of termination of his parental rights. 

We will consider his no evidence and legal sufficiency points together.  When reviewing a

challenge to the legal sufficiency of the evidence, i.e., a "no evidence" issue, the reviewing

court may consider only the evidence and inferences that support the challenged finding

and should disregard all evidence and inferences to the contrary.  Southwestern Bell

Mobile Sys. v. Franco, 971 S.W.2d 52, 54 (Tex.1998) (per curiam).  A no evidence point

will be sustained if there is no more than a scintilla of evidence to support the finding. 

General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex.1999).  Here, there was

evidence presented that shows Charles Ward engaged in conduct which endangered the

physical or emotional well-being of A.M.  First, through A.M.’s initial outcry  statement, and

secondly, through the videotape testimony of A.M. wherein she states that only “Chuck” touched her “down there.”  Therefore, the evidence is legally sufficient to support the jury’s verdict that Charles Ward engaged in conduct endangering the well-being of A.M., and his first

two points of error are overruled. 

 	By his third point of error, Charles Ward contends the evidence is factually insufficient to support the jury’s verdict.  He argues that the judgment is against the great weight and preponderance of the evidence because the evidence shows that he was “no billed” by a grand jury and that he passed a lie detector test.  Even if this evidence does have

probative value, a question we do not decide, the jury is sole judge of the weight and

credibility to be given such evidence.  McGalliard v. Kuhlmann, 722 S.W.2d 694, 697

(Tex.1986).  Also, Charles argues that A.M. was confused as to who the perpetrator was

on a videotaped interview of A.M.  It is not within the province of the court to interfere with

the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the

witnesses' testimony.  Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (11951).  Where

there is conflicting evidence, the jury's verdict on such matters is generally regarded as

conclusive.  Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 499 (Tex.App.--El Paso

1999, no pet.).  Moreover, we are convinced through A.M.’s videotaped statement that “Kenny used to be my dad,” and her response that “Mommy didn’t touch me down there, just Chuck,” provides clear and convincing evidence that A.M. knew that it was Charles that had sexually molested her.  Therefore, there is factually sufficient evidence to support

the jury’s verdict and we overrule Charles’s third point of error.	

	We next consider Dana’s points of error.  By her first point of error, she contends that

the evidence is legally and factually insufficient to support a finding that she knowingly

placed or knowingly allowed the children to remain in conditions or surroundings which

endangered their physical or emotional well-being of the children.  See Tex. Fam. Code Ann. § 161.001(D) (Vernon 2000).  Dana Ward also challenges the sufficiency of the evidence that she engaged in conduct or knowingly placed her children with persons who engaged in conduct

which endangered their physical or emotional well-being of that child.  See Tex. Fam. Code Ann. § 161.001(E) (Vernon 2000).  

	It is well-settled that a parent’s placement of their child with one who they knew had

sexually abused their child in the past is sufficient to justify termination of the parent-child

relationship.  See generally In Interest of L.S., 748 S.W.2d 571 (Tex.App.--Amarillo 1988, no writ) (evidence of mother's awareness of male companion's sexual abuse of four

children, and of her failure to adequately act on knowledge to protect her children despite

physical and emotional impact abuse had on them, was sufficient to warrant termination

of mother's parental rights); In Interest of A.C., 758 S.W.2d 390 (Tex.App.--Fort Worth

1988, no writ) (parent's placement of children in care of older child who parent knew had

sexually abused children in past was clear and convincing evidence that defendant had

placed children with person who endangered children's welfare and supported termination

of parental rights); Lakes v. Texas Dept. of Human Services, 791 S.W.2d 214 (Tex.App.--

Texarkana 1990, no writ) (knowingly placing or leaving children with persons known to

have sexually abused them is sufficient evidence to justify termination of parental rights). 

Here, the evidence clearly shows that Dana Ward left her children with Charles Ward after she learned

of Charles Ward’s sexual molestation of A.M.  Therefore, there was legally and factually sufficient

evidence to support termination of Dana Ward’s parental rights, and we overrule her first point

of error.

	Having found sufficient justification for terminating Dana Ward’s parental rights under

subsection D of section 161.001 of the Texas Family Code, we need not address her point

of error under subsection E.  Nor need we address her third point of error wherein she

contends that termination may not be based solely on the determination of the best interest

of the child not only because there is sufficient justification for terminating her parental

rights, but also because this point of error presents nothing for our review.

	Accordingly, the judgment of the trial court is affirmed.

							Don H. Reavis

						    	    Justice

Do not publish.