Opinion filed July 25, 2013
In The
Eleventh Court of Appeals
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No. 11-12-00369-CV
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IN THE INTEREST OF B.S., A CHILD
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. 48,049
MEMORAND UM OPI NI ON
This is an appeal from a judgment terminating the parental rights of B.S.’s
father.1 The Texas Department of Family and Protective Services (Department)
removed B.S. from his parents’ care in June 2008 when he was two days old. The
father’s parental rights were terminated in December 2012 after a jury found that
grounds for termination had been proved by clear and convincing evidence. We
affirm.
B.S.’s father presents nine issues for review. In the first three issues, he
challenges the standing of Appellees, the foster parents, to seek termination of his
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We note that the mother voluntarily relinquished her parental rights to B.S., and she is not a party to this
appeal.
parental rights. In the remaining six issues, the father challenges the trial court’s
denial of his motion for directed verdict.
The father asserts in his first, second, and third issues that Appellees lacked
standing under Section 102.003(a)(12) of the Texas Family Code, could not claim
“automatic standing” under Section 102.003(b), and could not claim standing
under Section 102.004. TEX. FAM. CODE ANN. § 102.003(a)(12), (b) (West Supp.
2012), § 102.004 (West 2008). The Family Code authorizes the foster parent of a
child placed by the Department in the foster parent’s home “for at least 12 months
ending not more than 90 days preceding the date of the filing of the petition” to file
an original suit affecting the parent-child relationship. Id. § 102.003(a)(12). With
respect to the second and third issues, we note that Section 102.003(b) merely
provides that the time necessary for standing under Section 102.003(a)(9), (11),
and (12) need not be continuous and that Section 102.004 relates to the standing of
grandparents and others to file a suit requesting to be appointed conservators of a
child.
The record in this case shows that B.S. had been placed by the Department
in Appellees’ home in July 2008 when B.S. was three weeks old, that Appellees
were his foster parents, and that B.S. remained in Appellees’ home on
December 18, 2009, when they filed their third amended renewed petition for
termination and adoption of B.S. When Appellees filed that petition, B.S. had been
in their home for almost seventeen months. Appellees met the requirements for
standing set out in Section 102.003(a)(12).
Additionally, the Family Code authorizes the filing of an original suit
requesting termination of the parent-child relationship joined with a petition for
adoption by an adult who has had actual possession and control of a child for not
less than two months during the three-month period preceding the filing of the
petition. FAM. § 102.005 (West Supp. 2012). Appellees had had possession and
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control of B.S. for the requisite time period when they filed their petition for
termination and adoption. We hold that Appellees had standing under either
Section 102.003(a)(12) or Section 102.005. The father’s first, second, and third
issues are overruled.
In his next six issues, the father asserts that the trial court erred in denying
his motion for directed verdict. A directed verdict in favor of a defendant is
appropriate when the plaintiff does not present evidence to raise a fact issue that is
essential to the plaintiff’s right of recovery. Prudential Ins. Co. of Am. v. Fin.
Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). In his fourth, fifth, sixth,
seventh, eighth, and ninth issues, the father argues that Appellees failed to present
evidence to support termination under TEX. FAM. CODE ANN. § 161.001(1)(D), (E),
(K), (N), (P), and (O) (West Supp. 2012), respectively, and that these issues should
not have been submitted to the jury. In these issues, the father challenges the legal
sufficiency of the evidence.
The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). To
determine if the evidence is legally sufficient in a parental termination case, we
review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(1)(A)–(T) and that
termination is in the best interest of the child. FAM. § 161.001. In this case, the
father does not challenge the finding regarding best interest.
We hold that Appellees presented evidence sufficient to support termination
under Section 161.001(1)(O), which provides that termination may be based upon
a parent’s failure to comply with the provisions of a court order that specifically
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established the actions necessary for him to obtain the return of the child who had
been in the conservatorship of the Department for more than nine months and had
been removed “under Chapter 262 for the abuse or neglect of the child.” The
record shows—and the father does not dispute—that B.S. had been in the
conservatorship of the Department for more than nine months and that the father
failed to comply with the provisions of a court order establishing the actions
necessary for him to obtain the return of B.S. The father contends that Appellees
failed to show that B.S. had been removed due to abuse or neglect. We disagree.
The record shows that B.S. was removed from his parents’ care when he was
two days old. On the day that B.S. was born, the Department received a referral
alleging neglectful supervision. The Department’s investigator, Bethany Jackson,
went to the hospital where B.S. had been born to contact the parents. The mother
appeared to have “pretty severe mental health issues”; she had recently been
released from a mental health hospital. The mother did not respond to Jackson’s
questions. Jackson testified that she was also concerned about the father’s mental
health. Furthermore, the father could not provide any information regarding their
family dynamics or their plan for B.S. when he was discharged from the hospital.
The parents informed Jackson that they “did not have any baby items” and that
B.S. “would not have a place to stay.” The parents were not prepared to have a
baby and were not sure how they were going to meet B.S.’s basic needs. The
parents did not have any housing and were not forthcoming about where they had
been living. B.S. was removed due to safety concerns because of the risk involved
in him leaving the hospital with his parents under these circumstances.
The father relies upon the lack of evidence showing actual abuse or neglect
of B.S. The Texas Supreme Court has recently rejected such a contention when it
interpreted the “abuse or neglect” provision of Section 161.001(1)(O) in In re
E.C.R., No. 12-0744, 2013 WL 2660130 (Tex. June 14, 2013). The court
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determined “that subsection O requires proof of abuse or neglect,” but it held that,
considering the use and meaning of those terms in context of the Family Code,
“abuse or neglect” in subsection O can be read to include “risk.” E.C.R., 2013 WL
2660130, at *7. The E.C.R. court determined that the conduct described in
Section 161.001(1)(O) was established as a matter of law under the circumstances
in that case, which included no actual abuse or neglect of the child at issue but did
include an immediate danger to the child’s physical health or safety, a need to
protect the child, and a substantial risk of a continuing danger if the child were
returned home. Id. at *9.
The evidence presented in this case showed that B.S. was removed due to
safety concerns and the substantial risk and continuing danger that would have
resulted if he had been allowed to leave the hospital with his mother and father.
Following E.C.R., we hold that Appellees met their burden under
Section 161.001(1)(O) to show that B.S. was removed due to abuse or neglect.
There was clear and convincing evidence that the father failed to comply with the
provisions of a court order that specifically established the actions necessary for
him to obtain the return of the child who had been in the conservatorship of the
Department for more than nine months and had been removed due to abuse or
neglect. The father’s ninth issue is overruled. Because a finding that a parent
committed one of the acts listed in Section 161.001(1)(A)–(T) is all that is required
under the statute, we need not address the father’s remaining issues. See TEX. R.
APP. P. 47.1.
We affirm the judgment of the trial court.
July 25, 2013 JIM R. WRIGHT
Panel consists of: Wright, C.J., CHIEF JUSTICE
McCall, J., and Willson, J.
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