In the Interest of M.J.M.L.

DUNCAN, Justice,

concurring and dissenting.

I concur in the court’s judgment affirming the termination of Stephanie Bell-Ortega’s parent-child relationship with M.J.M.L. But I must dissent to the judgment affirming the termination of Robert Ortega’s parental rights.

Standard of Review

Ortega challenges only the legal sufficiency of the evidence. In the context of the termination of parental rights, we review legal sufficiency complaints under the same standard employed in other types of cases. In re R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied). Accordingly, we must determine whether there is “(a) a complete absence of evidence [as to the challenged element]; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove [the challenged element]; (c) the evidence offered to prove [the challenged element] is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the [challenged element].” Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). Evidence is no more than a scintilla when it “is so weak as to do no more than create a mere surmise or suspicion of its existence.” Id. at 363. If reasonable minds cannot differ that evidence is not probative of the vital fact, it is, in legal effect, no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

Applicable Law

As the majority states, the only statutory ground for termination at issue is section 161.001(E) of the Texas Family Code, which provides:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence ... that the parent has ... 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)(E) (Vernon Supp.1999). Endangering a child involves “ ‘more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment.’ ” In re M.C., 917 S.W.2d 268, 269 (Tex.1996) (quoting Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987)). To “endanger” means “‘to expose to loss or injury; to jeopardize.’ ” Id. However, “ ‘it is not necessary that the conduct be directed at the child or that the child actually suffers injury.’ ” Id.

“Child,” as defined by the Family Code, “means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.” Id. § 101.003. As a general rule, the term “person” does not include a fetus. See Roe v. Wade, 410 U.S. 113, 158 , 93 S.Ct. 705 , 35 *357 L.Ed.2d 147 (1973) (“person,” as used in the Fourteenth Amendment to the United States Constitution, does not include the unborn); Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 504 (Tex.1987) (an unborn fetus is not an “individual” or “person” within the meaning of the wrongful death statute); Tex. Penal Code Ann. §§ 1.07 (a)(26), (38) (defining “individual” as “a human being who has been born and is alive” and defining “person” as “an individual, corporation, or association”), 22.04(c)(1) (defining “child” as “a person 14 years of age or younger”) (Vernon 1994).

PRE-Birth Conduct

In affirming the judgment against Ortega, the majority holds we may consider “what the parent did both before and after the child’s birth.” 31 S.W.3d at 351 (citing Avery v. State, 963 S.W.2d 550, 553 (Tex.App.-Houston [1st Dist.] 1997, no pet.), and Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex.App.-Dallas 1995, no writ)). In the majority’s view, the statutory definition of “child” does not conflict with consideration of pre-birth conduct. 31 S.W.3d at 351. I cannot agree, either as a matter of statutory construction or public policy.

Statutes authorizing the termination of parental rights must be strictly construed in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). In light of this rule of strict construction and the statutory definition of “child” in the Texas Family Code and the related definitions of “person” in Texas statutory and case law, we cannot construe section 161.001(1)(E) as permitting termination of the parent-child relationship for prenatal endangering conduct. This conclusion is buttressed by the grounds for termination set forth in section 161.001(1). Most of these grounds necessarily relate to post-birth conduct. See Tex. Fam.Code Ann. § 161.001(1)(A)-(C), (F), (G), (I), (J)(N), (O), (Q), and (S) (Vernon Supp.1999). Indeed, when the Texas Legislature intended for pre-birth conduct to justify termination, it made its intention perfectly clear. See id. at § 161.001(1)(H) (“voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth”); id. at § 161.001(1)(L)-(M) (conviction or community supervision for criminal responsibility for the death or serious injury of a child); id. at § 161.001(1)(R) (parent was cause of child being born addicted to alcohol or a controlled substance). I therefore must conclude the Texas Legislature intended for pre-birth conduct to justify termination only when the conduct is expressly encompassed by a statutory ground for termination. Since pre-birth conduct is not expressly mentioned in section 161.001(1)(E), it is not probative in this case.

Failure to Comply with Service Plan

The majority also relies upon evidence that Ortega failed to cooperate with the Department and failed to comply with its service plan. However, the trial court admitted this evidence solely for purposes of establishing M.J.M.L.’s best interests, as the following exchange makes clear:

Q: All right. Now, did you take that opportunity to go over with [Ortega] the plan that you had previously developed in his absence?

A: Yes.

Ortega’s attorney: Objection, Your Hon- or. Going to have to object to any references to the plan of service in this case. It is not plead as a ground for termination.

State’s attorney: Your Honor, it goes to best interest, that we have to show that we have attempted to work with this man and that he hasn’t responded.

*358 The Court: Overruled.

Ortega’s attorney: Your Honor, well, I reurge my objection, Judge.

The Court: Well, it doesn’t go to the grounds for termination. It goes to best interest.

Ortega’s attorney: But the Code was amended, if I may?

The Court: Sure.

Ortega’s attorney: May I address the Court? September 1st, 1997, Judge, the Family Code was amended to specifically set out as a basis for termination failure or failure to comply with the service plan or failure to cooperate with the plan of service developed by the Department. That has not been plead by the Department or any ad litem in this case. I cannot — in good conscience, I cannot agree to try that issue by consent, nor can I agree to a trial amendment on that issue. It is a specific ground, and this case was filed after September 1st, 97.

The Court: I understand that, and I’m not allowing it in on a specific ground, nor will I allow it to be tried by consent due to your objection, but I’m going to allow that information to come in on the second prong, best interest of the child.

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The Court: I will give you a running objection, too.

See Tex.R. Evid. 105(a). The State has not complained of the court’s ruling. Thus, in addressing the legal sufficiency of the evidence to support the trial court’s finding under section 161.001(1)(E), we may not consider evidence that Ortega failed to comply with the service plan or cooperate with the Department.

Past Residence

The majority also appears to rely on evidence that, after M.J.M.L.’s birth, Ortega lived for some period of time in an “empty, boarded-up shack.” I agree this is some evidence from which it might be inferred that Ortega’s living conditions, at least at some point in the past, might have jeopardized M.J.M.L.’s physical and emotional well-being. But this is not the test. Rather, Ortega’s conduct must have exposed M.J.M.L. to loss or injury. This test is plainly not met since Ortega has never had custody, control, or possession of the child.

Suggestion of Relative Placement

Finally, the majority relies upon evidence that the person Ortega suggested as a relative placement, his mother, was not evaluated because she no longer cared for Ortega’s other son. However, there is no evidence of the suitability of Ortega’s mother as a caregiver for M.J.M.L. Thus, Ortega’s suggestion of his mother is a relative placement is not probative of whether he engaged in conduct that endangered M.J.M.L.’s physical and emotional well-being.

Conclusion

So far as I can discern, the only probative evidence of whether Ortega may have jeopardized M.J.M.L.’s physical or emotional well-being is that he visited M.J.M.L. only three times in eighteen months, and he failed to ask CPS caseworkers about his son’s special needs. This is not in my view legally sufficient evidence to support the trial court’s finding of endangering conduct. As the CPS caseworker, Richard Guzman, testified:

Q: [H]as Mr. Ortega, Robert M. Ortega, the respondent here, engaged in any conduct which would damage or which would endanger the physical or emotional well-being of [M.J.M.L.]?

A: Not to my knowledge, sir.

Q: And he is not — you have already testified, he hasn’t placed the child with anybody; he hasn’t had that ability, correct?

A: Yes, sir.

*359 To terminate — finally and irrevocably— a child’s relationship with his father is a decision of constitutional magnitude. It may be that Ortega cannot parent M.J.M.L. But the Department has not proved its case in this proceeding. I therefore dissent to the majority’s judgment affirming the termination of Robert Ortega’s parent-child relationship with M.J.M.L.