in the Interest of Z. J. R., a Child ( 2017 )

NUMBER 13-17-00272-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF Z. L. R., Z. L. R., AND Z. R., CHILDREN
On appeal from the 377th District Court
of Victoria County, Texas.
NUMBER 13-17-00273-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF Z. J. R., A CHILD
On appeal from the 267th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Chief Justice Valdez
C.R., the mother, and A.L.R., the father, appeal the termination of their parental
rights to their children, Z.L.R. (“Z.L.R.1”), Z.L.R. (“Z.L.R.2”), and Z.R. in appellate cause
number 13-17-00272-CV.1 In appellate cause number 13-17-273-CV, C.R. appeals the
termination of her parental rights to her child, Z.J.R.2 By two issues, C.R. contends that
the evidence is legally insufficient to support a finding that she violated sections
161.001(b)(1)(D) and (O) of the Texas Family Code. See TEX. FAM. CODE ANN. §§
161.001(b)(1)(D), (O) (West, Westlaw through 2017 1st C.S.). By two issues, A.L.R.
contends the evidence is legally insufficient to support a finding that he violated sections
161.001(b)(1)(D) and (O) of the Texas Family Code. See id. §§ 161.001(b)(1)(D), (O).
We affirm.3
I. STANDARD OF REVIEW AND APPLICABLE LAW
Involuntary termination of parental rights involves fundamental constitutional rights
and divests the parent and child of all legal rights, privileges, duties, and powers normally
existing between them, except for the child’s right to inherit from the parent. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.
App.—Corpus Christi 2006, no pet.). Therefore, termination of the parent-child
relationship must be supported by clear and convincing evidence. In re J.L., 163 S.W.3d
1 See TEX. R. APP. P. 9.8(b)(2) (providing that in a parental-rights termination case, “the court must,
in its opinion, use an alias to refer to a minor, and if necessary to protect the minor’s identity, to the minor’s
parent or other family member”).
2 A.L.R. is not Z.J.R.’s father. Z.J.R.’s father, F.J.C., signed a voluntary relinquishment of his
parental rights to Z.J.R., and he is not a party to this appeal.
3 The underlying cases in both appellate cause numbers were heard together by the trial court on
April 28, 2017. Therefore, because the record is shared by both appellate causes, we will address the
issues in this consolidated memorandum opinion.
2
79, 84 (Tex. 2005). Before terminating the parent-child relationship, the trial court must
find by clear and convincing evidence that the parent committed one of the acts prohibited
by section 161.001(b)(1)(A–T) of the Texas Family Code and that termination is in the
child’s best interest. TEX. FAM. CODE ANN. § 161.001(b)(1)(A–T); In re J.L., 163 S.W.3d
at 84; see also TEX. FAM. CODE ANN. § 153.002 (West, Westlaw through 2017 1st C.S.).
The “clear and convincing” intermediate standard falls between the preponderance
of the evidence standard of civil proceedings and the reasonable doubt standard of
criminal proceedings. Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d
52, 57 (Tex. App.—Corpus Christi 2003, no pet.). It is “the 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, Westlaw
through 2017 1st C.S.); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). In reviewing the
legal sufficiency of the evidence supporting parental termination, we must assume that
the trier of fact resolved disputed facts in favor of its finding if it was reasonable to do so.
In re J.L., 163 S.W.3d at 85 (citing In re J.F.C., 96 S.W.3d at 266). We must also disregard
all evidence that a reasonable fact-finder could have disbelieved or found to be incredible.
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Here, the trial court after a bench trial, found by clear and convincing evidence that
C.R. and A.L.R., violated section 161.001 by (1) “knowingly plac[ing] or knowingly
allow[ing] the children to remain in conditions or surroundings which endanger the
physical or emotional well-being of the children,” see TEX. FAM. CODE ANN. §
161.001(1)(D), and (2) failing to
comply with the provisions of a court order that specifically established the
actions necessary for the mother to obtain the return of the children who
3
have been in the permanent or temporary managing conservatorship of the
[Department] for not less than nine months as a result of the children’s
removal from the parent[s] under Chapter 262 for the abuse or neglect of
the child[ren].
See id. § 161.001(b)(1)(O).4
A parental-rights termination decree must be based on at least one predicate
ground. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (affirming parental termination
based on one predicate without reaching second predicate found by fact-finder and
challenged by parent). If multiple predicate grounds are found by the trial court, we affirm
based on any one ground because only one is necessary for termination of parental rights.
In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied). Therefore, to
prevail on appeal, a party must challenge the sufficiency of each affirmative finding of a
predicate ground for termination or at minimum challenge the best interest finding. In re
S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.).
II. A.L.R.
In appellate cause number 13-17-00272-CV, A.L.R., contends by his second issue
that the evidence is legally insufficient to show by clear and convincing evidence that the
children were removed for abuse or neglect. Specifically, A.L.R. argues that “there was
insufficient evidence that at the time of removal of the children[, Z.L.R.1, Z.L.R.2, and
Z.R.] that [he] had abused or neglected his biological children as defined by Chapter 262
of the Family Code” and that it “was [the] acts or omissions committed by C.R.” that led
to the removal of the children.5
4The trial court also found that termination was in the children’s best interest; however, neither
parent challenges this finding in either cause.
5 A.L.R. does not challenge that (1) he failed to comply with the provisions of a court order that
specifically established the actions necessary for him to obtain the return of the children or (2) the children
were in the permanent or temporary managing conservatorship of the Department for not less than nine
4
[W]hile subsection O requires removal under chapter 262 for abuse
or neglect, those words are used broadly. Consistent with chapter 262’s
removal standards, “abuse or neglect of the child” necessarily includes the
risks or threats of the environment in which the child is placed. Part of that
calculus includes the harm suffered or the danger faced by other children
under the parent’s care. If a parent has neglected, sexually abused, or
otherwise endangered her child’s physical health or safety, such that initial
and continued removal are appropriate, the child has been “remov[ed] from
the parent under Chapter 262 for the abuse or neglect of the child.”
In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). The Texas Supreme Court has
determined that abuse or neglect of a child includes the risks or threats of the environment
in which the child is placed and that includes the abuse or neglect of other children in the
home. See id. at 245–49. And, in order to determine whether the child was removed
from a parent under Chapter 262 for abuse or neglect, the E.C.R. court indicated that
appellate courts may rely on the Department’s affidavit supporting initial removal and also
on the trial court’s unchallenged findings in the temporary orders. See id. at 248‒49.
In an affidavit in support of emergency removal, Kelsey Gangl, a “family based
worker” for the Department, testified that the Department received a report of physical
neglect and neglectful supervision of Z.L.R.1, Z.L.R.2, and Z.R. by C.R., L.M. (maternal
great-grandmother), A.L.R., and S.M. (maternal grandmother). Gangl stated that Z.L.R.1
(six years old) and Z.L.R.2 (four years old) were left in the care of the “elderly and
disabled” L.M., who allowed the children “to run around the housing property and into the
street unsupervised.” The allegations against S.M and L.M. “were given a disposition of
Unable to Determine.” The allegations of neglectful supervision of Z.L.R.1 and Z.L.R.2
against C.R. “were found Reason to Believe.” Gangl documented that “Collaterals stated
that the children had almost been hit by a vehicle and have been seen playing with broken
months. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West, Westlaw through 2017 1st C.S.).
5
glass while unsupervised.” She stated that “[t]he allegations of Neglectful
Supervision . . . by A.L.R. were found Unable to Determine.” However, A.L.R. “admitted
to using marijuana within 30 days of being interviewed and it was unknown whether
[A.L.R.] had supervised the children while under the influence.” The allegations of
physical neglect of the children by all parties including C.R. and A.L.R. were “Ruled Out.”
The investigation was then closed.
On August 12, 2015, the Department received a referral that C.R. had tested
positive for cocaine and benzodiazepines after giving birth to Z.J.R. and that C.R.
admitted to the hospital staff that she had used Xanax, without a prescription, before
giving birth to Z.J.R. Gangl stated that C.R. admitted to the hospital staff that she uses
marijuana and Z.J.R.’s urine tested positive for cocaine. In addition, according to Gangl,
C.R. admitted to the Department’s investigator, Kelli Wimberley, that she used cocaine
and Xanax approximately two days prior to giving birth to Z.J.R. C.R. also admitted to
Wimberley that she used marijuana a couple of months prior to Z.J.R.’s birth.
An agreed parental child safety plan was implemented for Z.J.R., who was placed
with a family friend, Jessica Hicks and for Z.L.R.1, Z.L.R.2, and Z.R., who were to live
with A.L.R. Department Investigator Kelly Williams testified that C.R. and A.L.R. agreed
that C.R. would not have unsupervised visits with the children. Williams testified that she
attempted to meet with C.R. on several occasions and that C.R. canceled the
appointments or would not attend the meetings. According to Gangl’s affidavit, when she
visited A.L.R.’s home, she found C.R. alone with the children. The affidavit states, “On
November 30, 2014 paternal grandmother [of Z.L.R.1, Z.L.R.2, and Z.R.] contacted me
and stated that she is unable to care for the children any longer and that [A.L.R.] had
6
‘fallen off the deep end.’ She stated that [A.L.R.] admitted to current drug use and
threatened that he was ready to ‘give up on life.’” Gangl explained that the paternal
grandmother “is unable to care for the children on her own due to her age and the toll it
has taken on her health” and that the paternal grandmother “indicated that [A.L.R.] is
sometimes out all night with [C.R.] leaving the children with herself or maternal
grandmother, [S.M.], who has previously not [been] approved as a caregiver due to
extensive past CPS history.” Gangl said the paternal grandmother “stated that she has
had to contact law enforcement as [C.R.] has voiced to her that she was going to scratch
up her own neck and act like [A.L.R.] did it so that he would get arrested for assaulting
her.” Gangl stated that A.L.R. told her that “he has been using . . . cocaine on occasion,
and marijuana on a daily basis” and that he refused to take a drug test.
Gangl concluded by stating that “the Department has attempted to provide services
to reduce the risk in the home”; however, “[t]he parents’ substance abuse hinders their
ability to supervise, care for, and protect the children.” Gangl explained that the “lack of
protective capacities exposes their children to substantial risk or harm” and that C.R. “has
been uncooperative with the Department and a Motion to Participate has been filed for
court-ordered service which she has yet to complete in order to reduce the risk in the
home.” Gangl stated that A.L.R. has put his children at risk as he continues to use
marijuana and cocaine on a regular basis although he is the primary caregiver to the
children at this time. Gangl said, “The parents have been unable to provide a safe and
stable environment for their children.”
The evidence showed that A.L.R. had been using drugs regularly, left the children
with a person who had a history with the Department and had not been approved as a
7
caregiver, allowed the children to be in C.R.’s care unsupervised, and had “go[ne] off the
deep end” wanting “to give up on life.”6 As to A.L.R.’s argument that he did not commit
the acts or omissions which led to the removal of the children, in In Interest of J.D., this
Court stated that section 161.001(b)(1)(O)’s requirement that the child be removed due
to abuse or neglect “does not require the parent who failed to comply with a court order
be the same parent whose abuse warranted the child’s initial removal.” No. 13-16-00062-
CV, 2016 WL 3068260, at *6 (Tex. App.—Corpus Christi May 26, 2016, no pet.) (mem.
op.). We concluded that “it does not matter that [the child] was initially removed because
of [the other parent’s] physical abuse and not [the appellant’s]” and that the appellant still
failed to comply with the family service plan established by the trial court. Id. Viewing the
evidence in the light most favorable to an affirmative finding under Section
161.001(b)(1)(O), we conclude that there was sufficiently clear and convincing evidence
presented allowing a reasonable fact finder to form a firm belief or conviction that the
children were removed due to abuse or neglect because of the risks or threats of the
environment in which the children were placed. See E.C.R., 402 S.W.3d at 245–49; see
also In re K.H., No. 12-05-00077-CV, 2006 WL 3211299, at *5 (Tex. App.—Tyler Nov. 8,
2006, no pet.) (mem. op.) (stating that evidence was sufficient to show children were
6 In E.C.R., the Texas Supreme Court held that the trial court’s findings that there was “sufficient
evidence to satisfy a person of ordinary prudence and caution that E.C.R. faced an immediate danger to
his physical health or safety, that the urgent need to protect him required his immediate removal, and that
he faced a substantial risk of a continuing danger if he were returned home” were supported by an affidavit
attached to the Department’s petition for possession of a child. The court stated, “This affidavit, even if not
evidence for all purposes, shows what the trial court relied on in determining whether removal was justified.”
In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). The court then concluded that this evidence from the
affidavit and the trial court’s findings established that E.C.R. was removed from the parent under chapter
262 for abuse or neglect. Id. at 248‒49; see also In re T.W., No. 13-14-00318-CV, 2014 WL 6792467, at
*5 (Tex. App.—Corpus Christi Dec. 3, 2014. No pet.) (mem. op.) (relying on an affidavit attached to the
Department’s petition and the trial court’s unchallenged findings to conclude that the evidence was sufficient
to establish that the child was removed for abuse or neglect under chapter 262 of the family code).
8
removed due to neglect because the Department’s investigator testified that the case was
“initiated because of domestic violence in the home and physical neglect of both
children”); In re A.C., No. 12-04-00264-CV, 2005 WL 2404108, at *1 (Tex. App.—Tyler
Sept. 30, 2005, no pet.) (mem. op.) (concluding that sufficient evidence supported that
the child was removed due to neglect because “there was ‘reason to believe’ a report
alleging neglectful supervision and physical neglect of both children by the parents” and
the Department’s specialist testified at trial that she “believed the children were
endangered or at risk because of alleged drug use and the lack of appropriate housing”).
We overrule A.L.R.’s second issue.7
III. C.R.
A. Appellate Cause Number 13-17-00272-CV
By two issues in appellate cause number 13-17-00272-CV, C.R. contends that the
evidence is insufficient to support the trial court’s findings that: (1) the Department
removed Z.L.R.1, Z.L.R.2, and Z.R. due to abuse or neglect and (2) she knowingly placed
the children in conditions or surroundings endangering the children’s physical or
emotional well-being.
As set out above, there was sufficient evidence that the Department removed
Z.L.R.1, Z.L.R.2, and Z.R. due to abuse or neglect based on Gangl’s affidavit stating that
C.R. had been unable to provide a safe and stable environment for the children and that
7 Having found that one predicate ground supports the trial court’s termination of A.L.R.’s parental
rights to Z.L.R.1, Z.L.R.2, and Z.R., we need not address his first issue contending that the evidence is
insufficient to support the trial court’s finding under section 161.001(b)(1)(D) that he “knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which endanger the physical or
emotional well-being of the children.” See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“Only one predicate
finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also
a finding that termination is in the child's best interest.”).
9
her substance abuse hindered her ability to supervise, care for, and protect the children.
Accordingly, we overrule C.R.’s first issue in appellate cause number 13-17-272-CV.8
B. Appellate Cause Number 13-17-00273-CV
By two issues in appellate cause number 13-17-00273-CV, C.R. contends that the
evidence is insufficient to support the trial court’s findings that (1) the Department
removed Z.J.R. due to abuse or neglect9 or (2) she knowingly placed her in conditions or
surroundings endangering her physical or emotional wellbeing.
“Parental and caregiver illegal drug use and drug-related criminal
activity . . . supports the conclusion that the children’s surroundings endanger their
physical or emotional well-being.” In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.) (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio
1998, pet. denied) (“An environment which routinely subjects a child to the probability that
she will be left alone because her parents are once again jailed, whether because of the
continued violation of probationary conditions or because of a new offense growing out
of a continued use of illegal drugs, or because the parents are once again committed to
a rehabilitation program, endangers both the physical and emotional well-being of a
child.”)); see also Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d
189, 197 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“Evidence of pre-natal and
8 Having found that one predicate ground supports the trial court’s termination of C.R.’s parental
rights to Z.L.R.1, Z.L.R.2, and Z.R., we need not address her first issue contending that the evidence is
insufficient to support the trial court’s finding under section 161.001(1)(D) that she “knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which endanger the physical or
emotional well-being of the children.” See In re A.V., 113 S.W.3d at 362.
9 C.R. does not challenge that (1) she failed to comply with the provisions of a court order that
specifically established the actions necessary for her to obtain the return of the children or (2) the children
were in the permanent or temporary managing conservatorship of the Department for not less than nine
months. See TEX. FAM. CODE ANN. § 161.001(1)(O) (West, Westlaw through 1st C.S.).
10
post-natal drug abuse by a parent may be a ground for termination.”) (citing In re R.D.,
955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied)). “Indeed, ‘[i]t is
illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of
persons who live in the home of a child, or with whom a child is compelled to associate
on a regular basis in his home, are not inherently a part of the conditions and
surroundings[ ] of that place or home.’” In re N.K., 399 S.W.3d 322, 330 (Tex. App. —
Amarillo 2013, no pet.); see also In re L.V., No. 13-10-283-CV, 2011 WL 676020, at *5
(Tex. App.—Corpus Christi Feb. 24, 2011, no pet.) (mem. op.) (explaining that a parent’s
conduct in the home including illegal activity and drug use may cause an endangering
environment for the children and holding that the “[a]ppellant’s failure to take any action
to protect his children from [the mother’s] drug abuse is sufficient to establish that he
knowingly allowed the children to remain in conditions or surroundings that endangered
their physical well-being”); In re H.M.A., No. 13-02-00286-CV, 2003 WL 22022009, at *3
(Tex. App.—Corpus Christi Aug. 28, 2003, no pet.) (mem. op.) (“Environment . . . is not
limited to a physical environment such as housing or living conditions. ‘Conditions or
surroundings’ for purposes of section (D) include also the environment produced by the
conduct of parents or others.”).
Here, evidence was presented that C.R. tested positive for cocaine and
benzodiazepines when she gave birth to Z.J.R. The evidence shows that C.R. admitted
to using cocaine two days before Z.J.R.’s birth and to using Xanax, without a prescription,
two days prior to Z.J.R.’s birth. C.R. admitted she had used marijuana while she was
pregnant with Z.J.R., and Z.J.R. was born with cocaine in her urine. When asked by the
Department if C.R.’s use of drugs while pregnant with Z.J.R. endangered Z.J.R., Williams
11
replied, “Yes.” The evidence shows that C.R. continued to use drugs after Z.J.R. was
born, and she tested positive for drugs on several occasions while on her service plan.
Viewing the evidence in the light most favorable to an affirmative finding under
Section 161.001(b)(1)(D), we conclude that there was sufficiently clear and convincing
evidence presented allowing a reasonable fact-finder to form a firm belief or conviction
that C.R. knowingly placed or knowingly allowed Z.J.R. to remain in conditions or
surroundings which endangered Z.J.R.’s physical or emotional well-being. See In re N.K.,
399 S.W.3d at 330; In re J.T.G., 121 S.W.3d at 125; see also In re L.V., No. 13-10-283-
CV, 2011 WL 676020, at *5. We overrule C.R.’s second issue.10
IV. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
16th day of November, 2017.
10 Having found that one predicate ground supports the trial court’s termination of C.R.’s parental
rights to Z.J.R., we need not address her first issue contending that the evidence is legally insufficient to
support the trial court’s finding under section 161.001(b)(1)(O) that Z.J.R. was not removed due to abuse
or neglect. See In re A.V., 113 S.W.3d at 362. Nonetheless, viewing the evidence in the light most
favorable to an affirmative finding under Section 161.001(1)(O), we conclude that there was sufficiently
clear and convincing evidence presented allowing a reasonable fact-finder to form a firm belief or conviction
that Z.J.R. was removed due to abuse or neglect because of the risks or threats of the environment in which
Z.J.R. was placed. See Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 197
(Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“Evidence of pre-natal and post-natal drug abuse by a
parent may be a ground for termination.”) (citing In re R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio
1997, pet. denied)). We overrule C.R.’s second issue.
12