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963 S.W. 2d 550 Avery vs. State

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963 S.W. 2d 550 Avery vs. State

Elizabeth AVERY, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-96-00884-CV.
Court of Appeals of Texas, Houston (1st Dist.).
Aug. 14, 1997.
Rehearing Overruled Sept. 16, 1997

In parental rights proceeding, the 315th District Court, Harris County, Kent Ellis, J., entered judgment terminating mother's pa­rental relationship with her child. Mother appealed. The Court of Appeals, Nuchia, J., held that: (1) evidence that mother's parental rights to another child had been terminated 17 years earlier was not too remote in time to justify termination of her parental rights to second child in instant proceeding; (2) evidence of mother's convictions and drug use prior to child's birth were admissible to show conscious course of conduct and contin­uation of misconduct since prior termination proceeding; and (3) specific statute afforded juvenile law master jurisdiction to hear pa­rental rights termination proceeding without consent of mother.

Affirmed.


1. Infants ©=155

Trial court may not terminate parent-child relationship solely on finding that it is in best interest of child and instead must also find that parent engaged in conduct de­scribed in statute as grounds for termination. V.T.CA, Family Code § 161.001.

2. Infants ©=178

Evidence that mother's parental rights to child had been terminated 17 years earlier for statutory grounds concerning endangerment of child's well-being was not too remote in time to justify termination of her parental rights to another child, in light of evidence that mother's endangering conduct still per­sisted; criminal record showed long pattern of criminal activity continuing after second child's birth, and mother admitted to history of cocaine and alcohol use, that she used cocaine throughout her pregnancy, and that she continued to use drugs as late as two weeks before trial. V.T.CA., Family Code § 161.00KM).

3. Infants ©=155

Parental conduct to be examined in con­sidering termination of parental rights in­cludes what parents did before and after birth of child.

4. Infants ©=157

Imprisonment of parent, of and by itself, does not constitute conduct endangering child as statutory grounds for termination of parental rights, but may qualify as conduct that endangers emotional well-being of child where it displays voluntary, deliberate, and conscious course of conduct. V.T.C.A., Fami­ly Code § 161.00KD, E, M).

5. Infants ©=173.1

Evidence of mother's convictions and drug use prior to child's birth were admissi­ble in parental rights termination proceeding to show conscious course of conduct and in­stability occurring both before and after child's birth and, most importantly, to show that mother had not altered her behavior since prior termination of earlier parent-child relationship with another child.

6. Infants ©=206

Specific statute afforded juvenile law master jurisdiction to hear parental rights termination proceeding without consent of mother, despite contrary general statute re­quiring consent of all parties for associate judge to hear contested terminations, based on specific nature of authorizing and fact that it was originally enacted later in time than general statute requiring consent. V.T.C.A., Government Code §§ 54.697, 311.026(a); V.T.C.A., Family Code § 201.005.

Michael D. Stewart, Houston, for Appel­lant.

Rock William A. Owens, Houston, for Ap­pellee.

Before SCHNEIDER, C.J., and NUCHIA and WILSON, JJ.

OPINION


NUCHIA, Justice.

Elizabeth Avery, appellant, appeals the tri­al court's termination of her parental rela­tionship with her son, E.F.

We affirm.

FACTS


On December 12, 1993, Elizabeth Avery gave birth to her son, E.F. Because Avery had a history of drug and alcohol abuse and did not have a place to live, the Texas De­partment of Protective and Regulatory Ser­vices took possession of E.F. immediately after his birth. Avery, therefore, never had possession of her son, and, since his birth, she recalls seeing him only twice.

After taking possession of E.F., Victor Burks, the caseworker, went to the Harris County Psychiatric Center to inform Avery that the State had taken possession of her son. After this visit, he stated there was a period of several weeks during which he did not know Avery's whereabouts or how to reach her. He did recall, however, that Avery had visited E.F. only once from De­cember 1993 through April 1994. Another caseworker, Manett Nelson, testified that he saw Avery visit E.F. on two occasions. He stated that her first visit was uneventful, but that the second visit was problematic. Dur­ing that visit, Nelson left Avery alone with her son in the visitation room. When he returned, he found Avery had taken off E.F.'s diaper and "was attempting to dig into the child's buttocks" to determine whether the foster parents had molested him.

Avery testified that she did not visit E.F. often because "it hurts her so badly when she would visit and then have to leave him." She admits that when E.F. is taken from her that she becomes very angry and wants to hurt people. She also testified that she did not know how she would take care of a "feisty little two-year-old," but she would try.

At the time of trial, E.F. had been placed in a foster home, and the foster family ex­pressed a desire to adopt him.

DISCUSSION


Termination of Parent-Child Relationship


In points of error one, two, three, and eight, Avery argues the trial court erred in terminating her parental rights under Family Code section 161.001 because: (1) her paren­tal rights were terminated based upon her lifestyle; (2) some of her criminal convictions were too remote to sustain termination; and (3) section 161.001 permits termination of parental rights without evidence of current parental conduct. See Tex.Fam.Code Ann. § 161.001 (Vernon 1975). We disagree.

The trial court terminated Avery's paren­tal rights under paragraphs (D), (E), and (M) of section 161.001(1) and subsection 161.001(2) of the Family Code. Specifically, the trial court found that Avery:

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

engaged in conduct or knowingly placed the child(ren) with persons who engaged in conduct which endangers the physical or emotional well-being of the child(ren);

had her parent-child relationship terminat­ed with respect to another child based on a finding that the parent's conduct was in violation of Texas Family Code Section

161.001(1)(D) or (E); and that termination is in the best interest of the child.

[1] To support the trial court's ruling, we must hold that the State produced sufficient evidence that Avery engaged in conduct de­scribed in subsection (1)(D), (1)(E), or (1)(M). That is, if we determine the trial court's termination was proper under any one of the subsections, we need not reach the constitu­tional challenges of the remaining subsec­tions. See Williams v. Texas Dep't of Hu­man Servs., 788 S.W.2d 922, 925 (Tex.App.— Houston [1st Dist] 1990, no writ). Although Avery did not challenge the finding that ter­mination is in the best interest of the child, that finding alone is insufficient to support the trial court's order. See Tex.Fam.Code Ann. § 161.001 (Vernon 1995). The trial court may not terminate the parent-child re­lationship solely on the finding that it is in the best interest of the child. Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Williams, 788 S.W.2d at 927. Before it can terminate parental rights, the trial court must also find that the parent engaged in conduct described in subsection (1)(D), (E), or (M).

Section 161.001(1)(M) provides that a trial court may order termination of the parent-child relationship if the parent has had her parent-child relationship terminated with an­other child based on a finding that her con­duct was in violation of paragraphs (D) or (E). Although Avery admitted that her pa­rental rights were terminated with another child 17 years ago based upon paragraph (D) and (E), she claims that termination is too remote in time, and, therefore, is irrelevant to her current capacity to care for E.F.

To support her argument, Avery relies on Hendricks v. Curry, 401 S.W.2d 796 (Tex. 1966). In that case, the court addressed whether a child was "neglected" under the then existing parental-termination statute. Id, at 800. The court stated that "these provisions do not contemplate that an adjudi­cation may be based solely upon conditions which existed in the distant past but no longer exist." Id. The facts in this case, however, are distinguishable from Hendricks. Here, the evidence shows that Avery's en­dangering conduct still persists. Her criminal record shows a pattern of criminal activi­ty beginning in 1979 and continuing after E.F.'s birth. Avery admits that she has a history of using cocaine and alcohol, and that she used cocaine throughout her pregnancy. Avery also testified that she continued to use drugs as late as two weeks before trial.

[2] Based upon this evidence, we hold the trial court could find by clear and convincing evidence that Avery's problems with crime and drug abuse still existed. The trial court did not err in considering the evidence of the earlier termination. Moreover, because we have determined that the trial court properly terminated Avery's parental rights under subsection (1)(M) and that Avery does not challenge the trial court's finding of termi­nation in the best interest of the child, we need not address Avery's constitutional chal­lenges to subsection (1)(D) and (1)(E). See Williams, 788 S.W.2d at 925.

We overrule points of error one, two, three, and eight.

Insufficiency of Evidence


In points of error four through seven, Avery argues the evidence was insufficient to produce in the mind of the trial court a firm belief that she had engaged in conduct pro­hibited by paragraphs (D) and (E) of subsec­tion 161.001(1) of the Family Code. Howev­er, because we held that the trial court's termination of Avery's parental rights was proper under paragraph (M), we need not determine whether the evidence was suffi­cient to support the termination under para­graphs (D) and (E).

We overrule points of error four through seven.

Evidence of Avery's Prior Behavior and Criminal Convictions


In point of error ten, Avery argues the trial court erred in admitting evidence of her conduct before the time E.F. was born to establish grounds for termination of her pa­rental rights. Specifically, Avery argues the introduction into evidence of her lengthy criminal record was improper and flies in the face of well-established law. We disagree.

[3,4] The parental conduct to be exam­ined in considering termination of parental rights includes what the parents did before and after the birth of the child. In re Guillory, 618 S.W.2d 948, 951 (Tex.App.--Hous­ton [1st Dist.] 1981, no writ). Imprisonment of a parent, of and by itself, does not consti­tute conduct described by paragraphs (D) and (E) of subsection 161.001(1) of the Fami­ly Code; nevertheless, where it displays a voluntary, deliberate, and conscious course of conduct, it qualifies as conduct that endan­gers the emotional well-being of a child. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex.1987); In re Guillory, 618 S.W.2d at 951.

[5] Here, Avery's past criminal record and behavior shows a conscious course of conduct and instability occurring both before and after E.F.'s birth. Most importantly, the evidence shows that Avery has not al­tered her behavior since the termination of the earlier parent-child relationship. The trial court, therefore, was correct in allowing evidence of her convictions and drug use.

We overrule point of error ten.


Authority of Juvenile Master


In point of error nine, Avery argues the associate judge did not have authority to hear the termination proceeding because she did not consent in writing as required by Tex. Fam. Code Ann. § 201.005(d) (Vernon 1996). In point of error eleven, Avery ar­gues the associate judge also did not have jurisdiction to hear the matter under title 5 of the Family Code and section 54.688 of the Government Code. Tex. Fam. Code Ann. §§ 101.001-264.701 (Vernon 1996)(title 5); Tex. Fam. Code Ann. § 201.005(d) (Vernon 1996); Tex.Gov't Code Ann. § 54.688 (Ver­non Supp.1997) (juvenile law master in Har­ris County).

We disagree.

Government Code section 54.681(a) states, "A majority of the judges of the courts that are designated as juvenile courts in Harris County may determine that one or more full-time or part-time masters are needed to serve those courts." Tex.Gov't Code Ann. § 54.681(a) (Vernon Supp.1997). In this case, the 315th Judicial District was designated to be in the juvenile district court trial division by a 1977 order of the local board of judges. Sherry Van Pelt presided as juve­nile law master over the trial. She was appointed under Tex. Gov't Code Ann. § 54.681 (Vernon Supp.1997).

Government Code section 54.688, which is part of the Harris County juvenile-law mas­ter statute, states that a judge may refer to a master any civil case or portion of a civil case brought under titles 1, 2, 3, or 4 of the Family Code. Tex. Gov't Code Ann. § 54.688 (Vernon Supp.1997) Government Code sec­tion 54.697, also describes the action the trial court may take on the master's report, but does not provide an avenue of appeals from the master to the district court.1 Tex. Gov't Code Ann. § 54.697 (Vernon Supp.1997).

On the contrary, Family Code section 201.005, the general family-law associate-judge statute, provides a vehicle for objection to a trial on the merits by an associate judge and requires consent of all parties for the associate judge to hear a contested termi­nation. Tex. Fam.Code Ann. § 201.005(d) (Vernon 1995). Section 201.005 also sets out detailed rules for notice of the right to appeal to the referring court, procedures for waiving the right to appeal, and details for the proce­dure for an appeal to the referring court. Tex. Fam. Code Ann. § 201.005(e) (Vernon 1995).

[6] After reviewing both statutes, it is clear that a master or associate judge cannot preside under both the general family-law associate-judge statute and the special Har­ris County juvenile law master statute. Therefore, we must first determine which statute governs in this case. Typically, when "a general provision conflicts with a special or local provision, the provision shall be con­strued, if possible, so that effect is given to both." Tex. Gov't Code Ann. § 311.026(a) (Vernon 1988). If, however, "the statutes are irreconcilable, the special or local provi­sion prevails over the general provision, unless the general provision is the later enact­ment and manifest intent is that the general provision prevail." Tex. Gov't Code Ann. § 311.026(b)(Vernon 1988).

In this case, we have a general provision in conflict with a special provision. Thus, under Government Code section 311.026(a), the spe­cial Harris County juvenile-law master stat­ute will prevail unless the general family-law associate-judge statute was the later enact­ment and the legislature intended for that provision to prevail. The general family-law associate-judge statute, section 201.005, was enacted in 1979. Act of May 24, 1979, 66th Leg., R.S., ch. 719,1979 Tex. Gen. Laws 1771 (Tex. Rev. Civ. Stat. Ann. Art. l918b, since re­pealed). The special Harris County masters statute, section 54.697, was originally enacted in 1987. Act of June 2, 2987, 20th Leg., R.S., ch. 674, § 3.03, 1987 Tex. Gen. Laws 2507, 2521. Therefore, section 54.697 prevails for both reasons—it is a special provision, and it was originally enacted later in time. See Graf v. Harris County, 877 S.W.2d 82, 84 (TexApp.— Houston [1st Dist] 1994, writ de­nied).

Because the master in this case was ap­pointed under Government Code section 54.681, she had jurisdiction over the case and had authority to hear the termination pro­ceeding under section 54.697, which does not require Avery's consent.

We overrule points of error nine and elev­en.

We affirm the trial court's judgment.


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