In re E.C.R.

402 S.W.3d 239

56 Tex. Sup. Ct. J. 666

In the Interest of E.C. R., child.

No. 12–0744.

Supreme Court of Texas.

Argued April 23, 2013.

Decided June 14, 2013.

Crow, Juliane Phillips, Attorney at Law, Houston, TX, for Other interested party Guardian Ad Litem.

Sandra D. Hachem, Vincent Reed Ryan Jr., Houston, TX, for Petitioner Department of Family & Protective Services.

William M. Thursland, Houston, TX, for Respondent R., M.

Chief Justice JEFFERSON delivered the opinion of the Court.

We require the State to overcome significant burdens before removing a child from his parent. These impediments are essential to protect the parent's fundamental liberty interest in the companionship, care, custody, and management of her children.¹ But “[j]ust as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26 (Tex.2002).²

The Family Code allows a court to terminate a parent's rights to her child if the child has been in the State's custody for at least nine months, and the State proves, by clear and convincing evidence, that the parent failed to comply with a court order that specified what she had to do to get her child back. Tex. Fam.Code § 161.001(1)( O ). The provision applies, however, only if the child was removed from the parent under Family Code Chapter 262 for “abuse or neglect of the child.” Id. We must decide whether abuse or neglect includes placing the child's physical health or safety at substantial risk, as outlined below. Because we conclude that it does, and because the parent's abuse or neglect of another child is relevant to that determination, we reverse in part the court of appeals' judgment and remand the case to that court.

I. Background

After M.R. was seen punching and dragging her four-year-old daughter, Y. C., by her ponytail down the street, a witness called the authorities. M.R.'s eight-month-old son, E.C.R., was not present during this incident. The police found that Y.C. had fresh bruising on her face, dried blood inside her nose, cuts on her forehead and lips, and multiple scrapes. The police arrested M.R., who denied causing the injuries but later pleaded guilty to bodily injury to a child, a third-degree felony. The Department of Family and Protective Services received a referral of physical abuse of Y.C., who was sent to live with her father. After its investigation, the Department placed E.C.R., whose paternity was undetermined, with foster parents.

The Department took possession of E.C.R. under Family Code section 262.104, which authorizes possession without a court order if circumstances would lead a person of ordinary prudence and caution to believe that the child faced “an immediate danger to [his] physical health or safety.” Tex. Fam.Code § 262.104. The next day, the Department filed a petition seeking conservatorship of E.C.R. and termination of M.R.'s parental rights. The petition was supported by a six-page affidavit recounting the circumstances necessitating E.C.R.'s removal. The affidavit described the allegations of physical abuse of Y.C. and also noted that M.R. had a prior CPS case involving physical abuse of an older son, who was in the permanent managing conservatorship of foster parents. M.R. told caseworker Cyntera Donatto that she had twice attempted suicide while spending three days in jail for the incident involving Y.C. After being released from jail, M.R. slept on the streets and left E.C.R. with her boyfriend at his home. M.R. told Donatto that the boyfriend physically abused her and was not stable. A criminal background check revealed that he had been arrested seven times over the past decade for theft, burglary, driving with an invalid license, and evading arrest. The day after she met with M.R., Donatto learned that M.R. had again been incarcerated.

Donatto observed E.C.R. and noted that, unlike Y.C., there were no evident signs that E.C.R. had been physically abused. He appeared clean, healthy, and developmentally on target. But his mother's history of abusing her other children, her fragile mental state, and her criminal case and incarceration persuaded Donatto that E.C.R. should not be left in M.R.'s care. Because E.C.R.'s paternity was unknown, the Department sought to be named his temporary managing conservator.

That day, the trial court found that E.C.R. had been removed pursuant to section 262.104 and that he faced a continuing danger to his physical health or safety if returned to M.R. The trial court also found that the nature of the emergency and the continuing danger to E.C.R.'s welfare made his return to M.R. impossible or unreasonable. The court set the matter for a full adversary hearing within fourteen days.

After that hearing the trial court found 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 makes efforts to eliminate or prevent the child's removal impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate the need for the child's removal and enable the child to return home, there is a substantial risk of a continuing danger if the child is returned home.

The court appointed the Department temporary managing conservator and ordered M.R. to comply with the service plan. SeeTex. Fam.Code §§ 263.101–.106. The court warned M.R. that her failure to do so could result in the termination of her parental rights. See id. §§ 161.001(1)( O ), 263.106.

At a subsequent status hearing, the trial court signed additional temporary orders setting the conditions for E.C.R.'s return to M.R. M.R. had to complete a psychiatric examination and follow all recommendations; complete a psychological examination and follow all recommendations; participate in counseling, including individual, group, or family therapy sessions; complete parenting classes; complete random drug tests; remain drug free; refrain from engaging in criminal activity; maintain stable housing; maintain stable employment; successfully complete domestic violence and anger management classes; and complete all services outlined in the Family Service Plan. The court found that M.R. reviewed and understood the service plan and was advised that unless she was willingand able to provide E.C.R. with a safe environment within the time specified in the plan, her parental rights could be terminated.

Almost a year later, the trial court held a termination hearing. M.R. gave limited testimony. She admitted being served with citation and receiving deferred adjudication for causing injury to a child, but she denied ever telling the caseworker that E.C.R. was not living in a safe environment. She provided the names of two men who might be E.C.R.'s father. She admitted having a prior CPS case that went to final orders, and that she no longer had custody of that child.

The Department representative testified that E.C.R. was removed because of the risk of physical abuse based on M.R.'s abuse of Y.C. The representative also stated that M.R. had completed some of the court-ordered requirements, but she had not satisfied the “big” ones. She failed to undergo a psychiatric evaluation or participate in psychotherapy. The Department also presented evidence that M.R. did not obtain employment, a violation of both the Family Service Plan and the conditions of her community supervision, and she had not lived in a home for six months.

The trial court terminated M.R.'s rights under subsection O of Family Code section 161.001(1), finding that such termination was in E.C.R.'s best interest. M.R. appealed, challenging the sufficiency of the evidence supporting termination under that subsection and the best interest finding. As to the former, her argument was straightforward. She did not dispute her failure to comply with the provisions of a court order that specifically established the actions necessary for E.C.R. to be returned to her and that E.C.R. had been in the Department's conservatorship for more than nine months. Instead, she argued that termination under subsection O was improper because E.C.R. was removed because of risk of abuse based on her conduct toward his sibling, but not for actual abuse or neglect.

The court of appeals agreed, holding that M.R.'s abuse of Y.C. was not evidence that M.R. abused or neglected E.C.R. 390 S.W.3d 22, 27. Instead, “[f]or a trial court to terminate parental rights under section 161.001(1)( O ), it must find that the child who is the subject of the suit was removed as a result of the abuse or neglect of that specific child.” Id. The court noted that “the Family Service Plan and [the caseworker's] testimony both show that [the Department] became involved as a result of M.R.'s abuse of E.C.R.'s sibling, a factor that the court could not consider in reaching a finding under section 161.001(1)( O ).” Id. at 28. The court reversed the portion of the trial court's judgment terminating M.R.'s parental rights and rendered judgment denying the Department's termination petition.³Id. at 30. A divided court voted against en banc reconsideration. Id. (Keyes, J., dissenting).

We granted the petition for review. 2013 Tex. LEXIS 112 (Feb. 15, 2013).

II. The Department proved grounds for termination under subsection 161.001(1)( O ) as a matter of law.

Family Code section 161.001(1) identifies multiple grounds for involuntarily terminating parental rights. Subsection O authorizes termination if the court finds, by clear and convincing evidence, that a parent has:

failed to comply with the provisions of a court order that...