in the Interest of K.N.D., a Child

IN THE SUPREME COURT OF TEXAS
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NO. 13-0257
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IN THE INTEREST OF K.N.D., A CHILD
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
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PER CURIAM
In this case, the trial court terminated A.D.’s parental rights to her daughter, K.N.D., under
section 161.001(1)(O) of the Texas Family Code and appointed the Department of Family and
Protective Services (the Department) as sole managing conservator. A.D. challenged the sufficiency
of the evidence to establish removal for “abuse or neglect” of K.N.D. under chapter 262 of the
Family Code and the sufficiency of the evidence to terminate in the child’s best interest. The court
of appeals upheld the Department’s appointment as sole managing conservator but reversed the
termination judgment and denied the Department’s petition for termination. In re K.N.D., 403
S.W.3d 277, 287 (Tex. App.—Houston [1st Dist.] 2012, pet. granted). The court of appeals held that
the evidence was legally insufficient to establish that K.N.D. was removed for “abuse or neglect”
under chapter 262, stating:
There is no evidence to suggest that A.D.’s living arrangements, status as a
prostitute, or personal relationships prior to one episode of domestic violence
actually exposed K.N.D. to a substantial risk of harm so as to constitute evidence of
neglect. . . . And there is no evidence to suggest that K.N.D. was actually injured so
as to support an inference that such injury arose from the mother’s abusive conduct.
Evidence relating to past abuse or neglect of children other than the removed child
is not relevant for purposes of section 161.001(1)(O).
Id. at 284–85. In light of our recent decision in In re E.C.R., 402 S.W.3d 239 (Tex. 2013), we now
reverse.
On April 28, 2011, A.D. gave birth to K.N.D. The following day, while K.N.D. remained
in the hospital, the Department received a referral concerning the “neglectful supervision” of K.N.D.
The referral reported that A.D. had been involved in a domestic dispute with her roommates while
thirty-seven weeks pregnant, resulting in A.D.’s falling down. A.D. had then been taken to the
hospital, where she gave birth. The referral reported that A.D.’s male roommate put his hands
around the female roommate’s neck and that the male roommate chased A.D., causing her to fall.
The female roommate came to the hospital and told a nurse that she and A.D. were prostitutes and
that the male roommate was their pimp. A.D. denied the allegations, claiming that her two
roommates got into an altercation, and that she felt dizzy and fell down. Because the evidence was
in dispute, caseworker Candice Chandler from the Department conducted an investigation and filed
an affidavit with the court, in accordance with chapter 262 of the Texas Family Code.
The investigation revealed that A.D. told a hospital social worker that A.D.’s male roommate
had been chasing her and stepped on her shoe, causing her to fall. An apartment worker also
witnessed A.D. being chased by her male roommate and saw her fall down before getting back up
and running to her apartment. The apartment worker told Chandler that the male roommate had
kicked the door into the apartment, and that the police escorted the male roommate off the premises
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while A.D. was taken to the hospital in an ambulance. The affidavit also stated that less than two
weeks prior to giving birth to K.N.D., A.D. had relinquished parental rights to her first child,
S.L.A.D., because she could not care for the child. A.D. had a history of “neglectful supervision”
and “medical neglect” of S.L.A.D. The affidavit further reported that the caseworker assigned to
S.L.A.D.’s case, Jasmin Green, classified A.D. as a “flight risk” with untreated “mental health
issues;” A.D. would say she would comply with agency recommendations, but she would not follow
through. Finally, the affidavit stated that A.D. had an assault charge on file from 2009.
Following the initial removal of a child, a court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence that the parent has:
failed 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.
TEX. FAM. CODE § 161.001(1)(O). In In re E.C.R., we held:
[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. . . . 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.”
402 S.W.3d at 248. We further held that a reviewing court may examine a parent’s history with
other children as a factor of the risks or threats of the environment, saying, “Part of [the] calculus
includes the harm suffered or the danger faced by other children under the parent’s care.” Id. In
light of In re E.C.R., we hold that K.N.D. was removed for abuse or neglect under chapter 262 of
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the Texas Family Code. Pursuant to Texas Rule of Appellate Procedure 59.1, we reverse the
judgment of the court of appeals and remand for further proceedings.
OPINION DELIVERED: January 17, 2014
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