in the Interest of C.B., a Child ( 2012 )

NO. 07-12-00065-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 27, 2012
IN THE INTEREST OF C.B., A CHILD
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 78,825-E; HONORABLE DOUGLAS WOODBURN, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
By this accelerated appeal, appellant, the mother of minor child C.B., appeals a
final order of the trial court terminating her parental rights to C.B.1 The sole predicate
ground relied on by the trial court for termination of the mother’s rights 2 was Family
Code § 161.001(1)(O) which inter alia requires proof that the child was removed from
1
We refer to appellant only as “the mother” to protect the minor child’s identity.
See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2011) (appellate court may identify
parties in opinion by fictitious names or their initials); Tex. R. App. P. 9.8(b)(1)(A) (West
2011) (requiring use of initials or fictitious name in some cases).
2
The trial court found D.W. was the presumed father of C.B. His parental rights
to C.B. were terminated on a finding of waiver of interest. The court terminated any
parental rights of an alleged “unknown father” of C.B. on a best interest finding.
According to the Department’s affidavit appended to its original petition, DNA testing
excluded the mother’s paramour, who lived with her, as the biological father of C.B.
the parent under Family Code Chapter 262 for the abuse or neglect of the child.
Through a single issue on appeal, the mother argues the evidence of abuse or neglect
was legally and factually insufficient to sustain a finding under § 161.001(1)(O). 3
Agreeing, we will reverse and render in part and affirm in part.
Background
Because the issue presented is narrow, we will discuss only the facts necessary
for our disposition. Appellee, the Department of Family and Protective Services,
removed two-year-old C.B. from the mother pursuant to § 262.1044 on March 30, 2010.
In its petition filed the next day, the Department alleged multiple grounds for termination
of the mother’s parental rights to C.B. Appended to the Department’s petition was an
affidavit of a Department investigator that contained a description of the circumstances
that lead to C.B.’s removal from the mother.
The trial court’s temporary order issued after an April 13, 2010 “full adversary
hearing” contained the following findings including those of § 262.201(b)5:
Having examined and reviewed the evidence, including the sworn Affidavit
accompanying the Original Petition and based upon the facts contained
therein, the Court finds there is sufficient evidence to satisfy a person of
ordinary prudence and caution that: (1) there was a danger to the physical
health or safety of the child which was caused by an act or failure to act of
the person entitled to possession and for the child to remain in the home is
contrary to the welfare of the child; (2) the urgent need for protection
required the immediate removal of the child and reasonable efforts
3
Tex. Fam. Code Ann. § 161.001(1)(O) (West Supp. 2011). All subsequent
citations to the Family Code are by section number or chapter number only.
4
Section 262.104 (West 2008).
5
Section 262.201(b) (West Supp. 2011).
2
consistent with the circumstances and providing for the safety of the child,
were made to eliminate or prevent the child’s removal; and (3) reasonable
efforts have been made to enable the child to return home, but there is a
substantial risk of a continuing danger if the child is returned home.
The Court finds sufficient evidence to satisfy a person of ordinary
prudence and caution that there is a continuing danger to the physical
health or safety of the child and for the child to remain in the home is
contrary to the welfare of the child.
The Court finds with respect to the child, [C.B.], that reasonable efforts
consistent with the child’s health and safety have been made by the
Department to prevent or eliminate the need for removal of the child from
the home and to make it possible for the child to return home, but that
continuation in the home would be contrary to the welfare of the child.
The order further notified the mother of the actions necessary to obtain the return of
C.B.
The family service plan was reviewed in April, August, and December 2010 and
April 2011. Through an order signed in March 2011, pursuant to § 263.401(b) 6, the
case was retained on the trial court’s docket. The matter proceeded to final disposition
through a bench trial conducted in November 2011, with the Department seeking
termination.
At trial, the Department presented its proof relevant to the removal of C.B. largely
through the testimony of a conservatorship worker. She was not the investigator who
signed the affidavit appended to the Department’s petition, but was assigned C.B.’s
case during April 2010.7 According to the worker, C.B. was removed because the
6
Section 263.401(b) (West 2008).
7
At times, the worker qualified her testimony with phrases such as, “I believe”; “I
have not read”; “I wasn’t the investigator on it, so I’m not for certain”; and “to my
knowledge.”
3
mother was involved in domestic violence and used methamphetamine. The worker
believed the mother was the victim of the domestic violence. And later in trial the
mother acknowledged she was a victim of domestic violence. It was also the belief of
the worker that domestic violence was ongoing between the mother and her paramour.
The worker was not, however, able to recall whether a particular incident brought a
report to the Department. Nor did the worker elaborate on specific acts of domestic
violence. The worker also testified that the mother tested positive for methamphetamine
at the time C.B. was removed.
The trial court judicially noticed its April 2010 temporary order, and drug test
reports regarding the mother and C.B. A test of a sample from the mother collected in
late January 2010, was positive for the presence of methamphetamine. The Department
collected samples from C.B. in late January and in April 2010; both were negative.
At the end of trial, the court orally rendered judgment terminating the mother’s
parental rights and appointing the Department managing conservator. It found three
predicate grounds for termination, § 161.001(1)(D), (E) and (O), and that termination
was in the best interest of C.B. However, the written judgment, signed by the court on
January 17, 2012, rests its decree of termination exclusively on the predicate ground of
§ 161.001(1)(O), and contains no written findings regarding the subsection (D) or (E)
grounds.8 The written judgment also appoints the Department permanent managing
conservator of C.B. Findings of fact and conclusions of law were requested by the
mother but not filed. This appeal followed.
8
The record contains no explanation for the difference between the grounds
announced by the court from the bench and the single ground listed in its written
judgment.
4
Analysis
Because termination of parental rights is such a drastic act, due process requires
that the petitioner justify termination by clear and convincing evidence. See §
161.206(a) (West 2011); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and
convincing evidence 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.” § 101.007 (West 2011).
When both legal and factual sufficiency challenges are presented, we first review
the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400,
401 (Tex. 1981). On a legal sufficiency analysis of a judgment terminating parental
rights:
[A] court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed
a firm belief or conviction that its finding was true. To give appropriate
deference to the factfinder’s conclusions and the role of a court conducting
a legal sufficiency review, looking at the evidence in the light most
favorable to the judgment means that a reviewing court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. This does not mean that a
court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew
the analysis of whether there is clear and convincing evidence. If, after
conducting its legal sufficiency review of the record evidence, a court
determines that no reasonable factfinder could form a firm belief or
conviction that the matter that must be proven is true, then that court must
conclude that the evidence is legally insufficient.
5
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see In re J.O.A., 283 S.W.3d at 344-345
(quoting In re J.F.C.).
For termination of parental rights under § 161.001, the trial court must find, by
clear and convincing evidence, both that the parent engaged in one of the predicate
grounds for termination listed in § 161.001(1) and that termination of the parent-child
relationship is in the best interest of the child. See § 161.001(1),(2); Horvatich v. Tex.
Dep’t of Protective & Regulatory Servs., 78 S.W.3d 594, 596 (Tex.App.--Austin 2002, no
pet.).
Because the court’s written judgment ordered termination of the mother’s
parental rights only on the basis of § 161.001(1)(O), and because it is undisputed that
our review of the judgment is limited to that ground, we do not discuss subsections (D)
or (E), or express any opinion on the sufficiency of the evidence to support termination
on either of those grounds.
To support termination under subsection (O), the Department was required to
prove the mother:
[F]ailed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the
child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the child’s removal from the
parent under Chapter 262 for the abuse or neglect of the child[.]
§ 161.001(1)(O).
The proof required includes evidence demonstrating that the child was removed
from the parent for the abuse or neglect of the child. In re H.S.V., 04-12-0150-CV, 2012
6
Tex. App. Lexis 5470, at *9 (Tex.App.--San Antonio July 11, 2012, n.p.h.) (mem. op.)
(describing requirement as “evidence that the parent abused or neglected the child”); In
the Interest of S.N., 287 S.W.3d 183, 190 (Tex.App.--Houston [14th Dist.] 2009, no pet.)
(abuse or neglect is “required element” of subsection (O)); Mann v. Dep’t of Family and
Protective Servs., No. 01-08-01004-CV, 2009 Tex. App. Lexis 7326, at *14 (Tex.App.--
Houston [1st Dist.] Sept. 17, 2009, no pet.) (mem. op.) (subsection (O) requires proof by
clear and convincing evidence that child was removed due to abuse or neglect by
parent). By her sole issue on appeal, the mother contends the evidence presented at
trial was legally and factually insufficient to establish that C.B. was removed from the
mother for abuse or neglect. She does not dispute that the Department had temporary
managing conservatorship of C.B. for more than nine months or that she failed to
complete the actions necessary to obtain the return of C.B. as set forth in the trial
court’s orders.
As noted, according to the Department’s witness at trial, C.B. was removed from
the mother because of domestic violence in her home and methamphetamine use.
Scanty trial testimony showed the mother was the victim of unspecified acts of domestic
violence. The mother’s own testimony and drug test results affirmed that she engaged
in the use of methamphetamine.
Chapter 161 does not contain definitions of the terms “abuse” or “neglect.” Our
courts have said that whether a child was removed from the parent under Chapter 262
for abuse or neglect is determined on a case-by-case basis. In re H.S.V., 2012 Tex.
App. Lexis 5470, at *9-10 (citing In re A.A.A., 265 S.W.3d. 507, 515 (Tex.App.--Houston
[1st Dist.] 2008, pet. denied); In re M.G., No. 14-09-00136-CV, 2009 Tex. App. Lexis
7
8811, at *23 (Tex.App.--Houston [14th Dist.] Nov. 17, 2009, no pet.) (mem. op.). Even a
case-by-case analysis, however, requires a standard. Chapter 261, Investigation of
Report of Child Abuse or Neglect, contains definitions of both terms. § 261.001(1) & (4)
(West 2008). While the definitions in Chapter 261 expressly apply to that chapter, 9 and
while the definitions given there are not exhaustive, 10 we find no reason why the
meanings given the terms abuse and neglect there should not inform our application of
those terms under Chapter 161. See Tex. Gov’t Code Ann. § 311.011(b) (West 2005)
(“Words and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly”).11
Pertinent to this case, Chapter 261’s definition of abuse specifically addresses
the subject of use of controlled substances, defining abuse to include “the current use
by a person of a controlled substance as defined by Chapter 481, Health and Safety
Code, in a manner or to the extent that the use results in physical, mental, or emotional
injury to a child.” § 261.001(1)(I). The record before us contains little evidence of C.B.’s
9
The definitions section in Chapter 261, § 261.001, begins with the words “[i]n
this chapter.”
10
See Tex. Gov’t Code Ann. § 311.005(13) (West 2005) (stating term “includes”
is term of enlargement and not of exclusive enumeration). Acts or omissions not listed in
those definitions thus may constitute abuse or neglect of a child.
11
See also Dickens v. Willis, 957 S.W. 657, 659 (Tex.App.--Austin 1997, no pet.)
(stating in absence of definition court may look to similar area of law for guidance); L &
M-Surco Mfg., Inc. v. Winn Tile Co., 580 S.W.2d 920, 926 (Tex.Civ.App.--Tyler 1979,
writ dism’d w.o.j.) (“Where the same or a similar term is used in the same connection in
different statutes, it will be given the same meaning in one that it has in another, unless
there is something to indicate that a different meaning was intended. This rule applies
with particular force where the meaning of a word as used in one act is clear or has
been judicially determined, and the same word is subsequently used in another act
pertaining to the same subject”).
8
physical, mental or emotional condition. We see no basis on which the court could have
determined that the mother’s drug use resulted in injury to C.B.12
Included among Chapter 261’s definitions of neglect is that of section
261.001(4)(B)(i), defining the term to include “placing a child in or failing to remove a
child from a situation that a reasonable person would realize requires judgment or
actions beyond the child’s level of maturity, physical condition, or mental abilities and
that results in bodily injury or a substantial risk of immediate harm to the child.” The
mother’s failure to distance herself and C.B. from the domestic violence perpetrated by
her paramour, who lived with her, could be termed a failure to remove C.B. from a
situation requiring actions beyond the child’s level of maturity. And a pattern of violence
directed toward the mother by her paramour would carry some risk that a two-year-old
child in the home may suffer harm, but this record does not support a conclusion that
C.B. was subjected to “a substantial risk of immediate harm.”
Although we find Chapter 261’s definitions of abuse and neglect instructive,
comparison of this record with that of other cases applying subsection (O) leads also to
the conclusion the evidence here is legally insufficient.
The Department points to the trial court’s temporary order following the full
adversary hearing, in which the trial court found sufficient evidence existed “to satisfy a
person of ordinary prudence and caution” that there was a danger to the physical health
12
Cf. § 262.104(b) (West 2008) (authorizing removal of child permitted to remain
on premises used for manufacture of methamphetamine).
9
or safety13 of C.B., caused by an act or omission of the person entitled to possession,
and for the child to remain in the home was contrary to the child’s welfare. The court
also found an “urgent need” for C.B.’s protection required the child’s immediate
removal, and found there was “a substantial risk of a continuing danger” if the child were
returned home. While at that stage of the proceeding the court made these as well as
the other findings necessary for the Department to retain possession of C.B. under §
262.201(b), it made no findings that C.B. was actually abused or neglected. We
conclude the temporary order of which the court took judicial notice does not provide the
evidence of abuse or neglect required for termination under the subsection (O) ground.
See In re E.C.R., No. 01-11-0791-CV, 2012 Tex. App. Lexis 2114, at *11-17 (Tex.App.--
Houston [1st Dist.] Mar. 15, 2012, n.p.h.) (despite body of evidence containing findings
in temporary order of “danger to the physical health or safety” of the child and “a
substantial risk of a continuing danger if the child is returned home,” evidence held
legally insufficient to establish abuse or neglect under § 161.001(1)(O)).
A reporter’s record of the full adversary hearing was not filed in this court. The
temporary order recites that after examining and reviewing “the evidence, including the
sworn Affidavit accompanying the Original Petition and based upon the facts contained
therein,” the trial court reached its findings. The Department asserts we may consider
in our sufficiency analysis the contents of the affidavit filed with its original petition. As
noted, the Department took possession of C.B. pursuant to § 262.104, and filed its
petition the next day, in accordance with § 262.105.
13
See § 101.009 (West 2008) (defining “danger to the physical health or safety of
a child” to include “exposure of the child to loss or injury that jeopardizes the physical
health or safety of the child without regard to whether there has been an actual prior
injury to the child”).
10
The mother argues against our consideration of the contents of the affidavit,
pointing out it was not offered into evidence at trial. Because we find the contents of the
affidavit add little to the Department’s proof, and do not establish the mother abused or
neglected C.B., we do not address the propriety of including the affidavit among the
evidence.
According to the affidavit, whose affiant did not testify at trial, the Department
took emergency possession of C.B. because the mother and her paramour tested
positive for methamphetamine use and the mother “admitted to recent and chronic
methamphetamine use”; the mother intentionally attempted to avoid contact with the
Department and was a “flight risk”; and the mother “continued to expose [C.B.] to
domestic violence between herself and [her paramour].” Elsewhere the affidavit states
the Department decided to seek “legal intervention” because the mother’s four-year-old
daughter was previously removed and the mother had a positive drug test.
The affidavit also recounts the mother’s pre-removal interview with the
Department. There, the mother stated she used methamphetamine “about once a
month” by inhalation outdoors. It appears on these occasions C.B. was left inside. Her
paramour kept methamphetamine in a cabinet beside his bed and smoked the
substance on a regular basis behind a locked door. On these occasions, the mother
kept C.B. with her in the living room or took him outdoors. The mother also described
herself as the victim of domestic violence perpetrated by her paramour. On several
occasions, he struck her on the head in the presence of C.B. In an episode recent to
the affidavit, he struck her on the head with his hand. When she tried to leave the home
while holding C.B., the paramour “grabbed” her and brought her back inside the
11
residence. Through an unspecified act of domestic violence two years earlier, the
mother believed she was harmed to the point of losing consciousness. The mother
permitted a Department worker to listen to a recorded telephone message containing a
threat to the mother’s life by the paramour.
The affidavit portrays a volatile home environment and behavior by the mother
and her paramour capable of resulting in abuse or neglect of a two-year-old child, but §
161.001(1)(O) requires actual occurrence of abuse or neglect to justify termination of
parental rights. See In re H.S.V., 04-12-0150-CV, 2012 Tex. App. Lexis 5470, at *9; In
re S.A.P., 169 S.W.3d 685, 705-06 (Tex.App.--Waco 2005, no pet.) (evidence child was
removed on risk of abuse or neglect because of parents’ history was legally insufficient).
But see In re M.L.J., No. 02-07-0178-CV, 2008 Tex. App. Lexis 3218, at *14-18
(Tex.App.--Fort Worth May 1, 2008, pet. denied) (mem. op.) (apparently concluding
evidence of risk or fear of abuse or neglect sufficiently satisfied requirement of §
161.001(1)(O)). While the affidavit may have been sufficient to support the trial court’s
order under § 261.201(b)(1), it does not provide sufficient evidence to show by the clear
and convincing standard that C.B. was removed from the mother under Chapter 262 for
abuse or neglect. See Mann, 2009 Tex. App. Lexis 7326, at *17 (noting abusive
conduct of parent toward sibling of child made subject of termination proceeding may
have provided reason to remove subject child under Chapter 262, but was not evidence
that subject child “actually sustained abuse or neglect” by parent).
We find the evidence, viewed in the light most favorable to the trial court’s
judgment, was not such as would permit a reasonable trier of fact to form a firm belief or
conviction that C.B. was removed from the mother under Chapter 262 for the abuse or
12
neglect of C.B, and was thus legally insufficient. It is therefore unnecessary to consider
the mother’s factual insufficiency complaint. Tex. R. App. P. 47.1.
The trial court also appointed the Department permanent managing conservator
of C.B. The mother does not challenge this determination on appeal. We therefore will
affirm the judgment’s appointment of the Department as permanent managing
conservator of C.B. See Mann, 2009 Tex. App. Lexis 7326, at *40 (citing Earvin v.
Dep’t of Family & Protective Servs., 229 S.W.3d 345, 351 (Tex.App.--Houston [1st Dist.]
2007, no pet.); In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007); In re J.F.C., 96
S.W.3d at 266.
Conclusion
The portion of the judgment terminating the parent-child relationship between the
mother and C.B. is reversed, and judgment is rendered denying the request of the
Department for termination of the parent-child relationship between the mother and C.B.
The judgment of the trial court is otherwise affirmed.
James T. Campbell
Justice
13