Opinion issued October 11, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00331-CV
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IN THE INTEREST OF R.M.S.
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Case No. 2007-31908
MEMORANDUM OPINION
In this accelerated appeal, appellant, Quentessa LaDawn Synegal, challenges
the trial court’s order, entered after a bench trial, terminating her parental rights to
her minor child, R.M.S. On appeal, appellant argues that the evidence was legally
and factually insufficient to support termination of her parental rights under Family
Code §§ 161.001(1)(E), (F), (O) or (P). See TEX. FAM. CODE ANN. §§
161.001(1)(E), (F), (O), (P) (Vernon Supp. 2012). We affirm.
TERMINATION OF PARENTAL RIGHTS
In her sole issue on appeal, appellant argues that the evidence supporting the
trial court’s termination of her parental rights to R.M.S. was legally or factually
insufficient.
Standard of Review
A parent’s rights to the “companionship, care, custody, and management” of
his or her child is a constitutional interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397
(1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Therefore, we strictly
scrutinize termination proceedings and strictly construe the involuntary termination
statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985). However, “the rights of natural parents are not absolute” and “[t]he rights
of parenthood are accorded only to those fit to accept the accompanying
responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a
parent may forfeit his or her parental rights by their acts or omissions, the primary
focus of a termination suit is protection of the child’s best interests. Id.
In a case to terminate parental rights by the Department of Family and
Protective Services [“DFPS”] under § 161.001 of the Family Code, DFPS must
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establish, by clear and convincing evidence, that (1) the parent committed one or
more of the enumerated acts or omissions justifying termination and (2)
termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001.
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.” Id. § 101.007 (Vernon 2008); In re
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate finding under section
161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at
362.
In a legal sufficiency review in a parental-rights-termination case, the
appellate 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. In re J.F.C., 96 S.W.3d at 266. We
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, disregarding all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. Id. If, after
conducting a legal sufficiency review of the record, we determine that no
reasonable factfinder could form a firm belief or conviction that the matter that
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must be proven is true, then we must conclude that the evidence is legally
insufficient. Id.
In conducting a factual-sufficiency review in a parental-rights termination
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a factfinder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS
bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should
consider whether the disputed evidence is such that a reasonable factfinder could
not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266–67. “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006).
Termination under Subsection 161.001(1)(O)
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 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
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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 ANN. § 161.001(1)(O). Thus, under subsection (O) the
Department must prove that: (1) DFPS has been the child’s temporary or
permanent managing conservator for at least nine months; (2) DFPS took custody
of the child as a result of a removal from the parent for abuse or neglect; (3) a court
issued an order establishing the actions necessary for the parent to obtain the return
of the child; and (4) the parent did not comply with the court order.
Here, “[a]ppellant does not dispute the existence of evidence sufficient to
support findings for elements 1, 3, and 4; [a]ppellant does, however, dispute that
there was sufficient evidence to support the necessary finding that [DFPS] took
custody of R.M.S. as a result of an emergency removal for child abuse or neglect
under Family Code chapter 262.” We agree that it is DFPS’s burden to show,
under subsection O, that the child was removed for abuse or neglect, see In re
E.C.R., 402 S.W.3d 239, 246 (Tex. 2013) (holding that “subsection O requires
proof of abuse or neglect[.]”), and we interpret the words “abuse” and “neglect”
broadly to necessarily include the risks or threats of the environment in which the
child is placed. Id. at 248. However, we disagree with appellant’s assertion that
the record is insufficient to support the trial court’s finding that R.M.S. was
removed from appellant’s home because of abuse or neglect.
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In E.C.R., the supreme court considered whether there was sufficient
evidence to support the trial court’s finding that the children involved had been
removed because of abuse or neglect. Id. In so doing, the court considered an
affidavit that DFPS had filed in support of its petition, in which the affiant noted
allegations that the child’s sibling had been physically abused. Id. The supreme
court noted that, “[t]his affidavit, even if not evidence for all purposes, shows what
the trial court relied on in determining whether removal was justified.” Id. The
court subsequently found “sufficient evidence to satisfy a person of ordinary
prudence and caution that [the child] 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[.]” Id. The supreme court then held that (1) the affidavit and (2)
subsequent finding by the trial court authorizing the child’s removal, were
sufficient evidence to establish, as a matter of law, that the child had been removed
under chapter 262 for abuse or neglect. Id. at 249. The supreme court also cited
several similar cases in which documentary evidence supporting DFPS’s petition
and the trial court’s subsequent temporary order for removal of the child were held
to be sufficient evidence to establish that the child had been removed for abuse or
neglect. Id.; see, e.g., In re J.S.G., No. 14–08–00754–CV, 2009 WL 1311986, at
*6–7 (Tex. App.—Houston [14th Dist.] May 7, 2009, no pet.) (mem.op.) (relying
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on caseworker’s affidavit in support of the Department’s removal request, as well
as trial court’s temporary orders concluding that the children faced a danger to
their physical health or safety and a substantial risk of a continuing danger if
returned home, to conclude that the evidence established that the children were
removed “as a result of neglect specific to them by” the mother); see also D.F. v.
Tex. Dep’t of Family & Protective Servs., 393 S.W.3d 821, 830–31 (Tex. App.—El
Paso 2012, no pet.) (noting that trial court’s finding of immediate danger to child’s
physical health or safety or that they were neglected or abused supported finding of
neglect); In re S.N., 287 S.W.3d 183, 190 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (holding that affidavit, family service plan, and temporary orders showing
danger to physical health or safety and substantial risk of continuing danger
supported finding that children were removed under Chapter 262 for neglect); In re
A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied) (considering affidavit in support of removal and trial court’s temporary
orders finding continuing danger to the physical health or safety of the child if
returned to the parent as evidence that child was removed because of neglect).
Here, DFPS’s original motion to modify and petition for conservatorship and
termination of parental right, filed on August 11, 2011, were accompanied by an
affidavit in support filed by Christina Bailey, in which Bailey averred that when
appellant appeared with her children at a doctors’ appointment on March 31, 2011,
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they reeked of urine, appellant appeared to be “under the influence of something,”
and her eyes were glassy. Allegations of physical abuse were ruled out, but
appellant was referred to Family Based Safety Services due to appellant’s apparent
inability to care for the children. Part of the services required appellant to
participate in a substance abuse assessment, which she did on May 19, 2011,
testing positive for benzodiazepines and morphine. None of the prescriptions
appellant had would have caused such a positive test. Bailey further stated that
appellant failed to attend a subsequent meeting that had been set up to discuss her
case and failed to take another drug test.
On August 25, 2011, the trial court held a full adversarial hearing, after
which it signed an order appointing DFPS temporary managing conservator of the
child. The trial court also found as follows:
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 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 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.
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The affidavit in support of DFPS’s petition and the subsequent temporary
order by the trial court removing the child from appellant’s home are the type of
evidence upon which the supreme court relied E.C.R. in finding the evidence
sufficient to support the trial court’s finding that the child had been removed for
abuse of neglect. In fact, in E.C.R., the affidavit was sufficient to show that the
child was removed for abuse or neglect, even though the allegations in the affidavit
involved the abuse of a sibling. In re E.C.R., 402 S.W.3d at 248. Here, R.M.S. is
the actual subject of the allegations in the affidavit because he was present at the
doctor’s office when the abuse or neglect was documented.
Because a reasonable factfinder could have formed a firm belief or
conviction that R.M.S. was removed from appellant’s home for abuse or neglect,
we conclude that the evidence is legally sufficient.1 E.C.R., 402 S.W.3d at 249.
Appellant points to no contradictory evidence in the record to show that
R.M.S. was removed for a reason other than abuse or neglect. Therefore, after
considering the entire record, we conclude that the evidence
1
To the extent that DFPS’s affidavit was not admitted at trial, we note that the same
information was contained in the Court Report filed by the Court Appointed
Volunteer Advocate representing the child, and that the trial court took judicial
notice of such report without objection by appellant. See In re S.N., 287 S.W.3d at
190 n.2 (holding that error, if any, in considering affidavit in support of DFPS
petition not admitted at trial was harmless when same evidence was admitted
elsewhere). We also presume that the trial court took judicial notice of its own
August 25, 2011 order granting DFPS temporary managing conservatorship of the
child. See In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.]
2013, no pet. h.) (holding that trial court was presumed to have taken judicial
notice of its own orders).
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is factually sufficient for a reasonable factfinder to have formed a firm belief
that the R.M.S. was removed from appellant’s home for abuse or neglect. In re
J.F.C., 96 S.W.3d at 266.
CONCLUSION
Having found legally and factually sufficient evidence to support one
predicate finding under section 161.001(1), and there being no challenge by
appellant to the trial court’s finding that termination would be in the best interest of
the child, we affirm the trial court’s judgment. In re A.V., 113 S.W.3d at 362
(“Only one predicate finding under section 161.001(1) is necessary to support a
judgment of termination when there is also a finding that termination is in the
child’s best interest.”).
/s/ Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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