Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00095-CV
IN THE INTEREST OF S.Z.
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02482
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: June 27, 2018
AFFIRMED
Raymond Z. appeals the trial court’s order terminating his parental rights to his daughter,
fifteen-year-old S.Z. 1 After a bench trial, the trial court found by clear and convincing evidence
that Raymond Z. had (1) knowingly placed or knowingly allowed his child to remain in conditions
or surroundings that endangered her physical or emotional well-being, see TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D) (West Supp. 2017); (2) engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional well-being of the
child, see id. § 161.001(b)(1)(E); (3) failed to comply with the provisions of a court order that
specifically established the actions necessary for Raymond Z. to obtain the return of his child who
1
To protect the privacy of the parties in this case, we identify the child by her initials and the father by his first name
only. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017).
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had 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, see id. § 161.001(b)(1)(O); and (4)
used a controlled substance, as defined by Chapter 481 of the Health and Safety Code, in a manner
that endangered the health or safety of the child, and (a) failed to complete a court-ordered
substance abuse treatment program; or (b) after completion of a court-ordered substance abuse
treatment program continued to abuse a controlled substance, see TEX. FAM. CODE ANN.
§ 161.001(b)(1)(P) (West Supp. 2017). The trial court also found by clear and convincing evidence
that termination of Raymond Z.’s parental rights was in the child’s best interest. See id.
§ 161.001(b)(2). On appeal, Raymond Z. argues the evidence is legally and factually insufficient
to support the above findings by the trial court.
THE TRIAL
At trial, the trial court heard testimony from three Department caseworkers, S.Z.’s
counselor, Raymond Z’s counselors, and Raymond Z.
Ariana Jones, a Department caseworker, testified that she worked with the family from
September to November 2016. She had received a referral based on allegations that Victoria M.,
Raymond Z.’s wife and stepmother to S.Z., had abused narcotics and methadone during her
pregnancy with S.Z.’s half-brother. According to Jones, Victoria M. admitted to having used
methadone during her pregnancy. After speaking to the family members, Jones offered services to
them, including individual counseling for Raymond Z. and outpatient drug treatment for Victoria
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M. When Raymond Z. and Victoria M. did not comply, Jones decided to remove S.Z. from the
home on November 3, 2016. 2
According to Jones, S.Z. told her that there was physical abuse in the home, describing
times when Victoria M. would assault her, lock her in her bedroom at night, and accuse her of
cutting Victoria M.’s hair in the middle of the night and putting roaches in Victoria M.’s shampoo.
S.Z. also reported that Victoria M. and Raymond Z. took her with them to a drug dealer’s house.
According to Jones, S.Z. seemed upset and disturbed by the situation, and reported feeling unsafe
at home. S.Z. also reported that she had witnessed domestic violence between Victoria M. and
Raymond Z., including instances during which her younger brothers were also present. Jones
testified that both Victoria M. and Raymond Z. had admitted to domestic violence. According to
Jones, S.Z. had become “extremely parentified”—that is, when Victoria M. and Raymond Z.
engaged in domestic violence, S.Z. was the one protecting her younger brothers. Jones believed it
was in S.Z.’s best interest to be removed from her home.
Jones testified that with regard to the services offered, Raymond Z. and Victoria M. were
minimally compliant. Raymond Z. began counseling but then asked Jones to refer him to a
different counselor because he was having issues paying for the counseling. According to Jones,
Raymond Z. admitted he knew about issues between S.Z. and Victoria M. and about S.Z. possibly
cutting Victoria M.’s hair in the middle of the night, putting roaches in Victoria M.’s shampoo, or
doing other things to upset Victoria M. Jones testified that at one point, Raymond Z. said he wanted
family members to take S.Z. because she was interfering with his relationship with Victoria M.
2
Three other children, who are the biological sons of Raymond Z. and Victoria M., were also removed. Raymond Z.
and Victoria M.’s parental rights to these three other children were subsequently terminated. In a separate appeal,
Raymond Z. is appealing the termination of his parental rights to these three other children.
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According to Jones, Raymond Z. admitted he knew about Victoria M.’s drug use and knew the
money he gave her went to purchase drugs, which she used while taking care of the children.
Alyssa Cordova, a Department legal worker assigned to Raymond Z., became involved in
the case in November 2016 and prepared a service plan for him. Although Raymond Z. completed
his services, Cordova did not feel as though he had met his goals associated with the service plan.
Part of Raymond Z.’s plan required him to meet the goal of demonstrating he would be protective
of S.Z. and that he understood his role in the case. According to Cordova, S.Z. still does not feel
like she can trust Raymond Z. Although Raymond Z. visits with S.Z., he continues his same
behaviors and continues to blame S.Z. Cordova testified that during the visits, he has shown his
priorities are not on S.Z. Raymond Z. has made false promises to S.Z., and he has shown her that
he still sees her as a parent during the visits—S.Z. is still the one taking care of the three younger
children. However, Cordova admitted that recent visits between Raymond Z. and S.Z. had been
appropriate. According to Cordova, Raymond Z. is upset with S.Z. because the goal in this case is
termination of his parental rights. Cordova testified Raymond Z. is not currently in a relationship
with Victoria M.
Cordova testified she does not believe Raymond Z. will adequately protect S.Z. in the
future if she is returned to him. According to Cordova, S.Z. has talked about the physical abuse
that occurred with Victoria M., which her father knew about but did not protect her from.
According to Cordova, S.Z. has been consistent about not wanting to go back with her father. S.Z.
has consistently said she does not trust him, she does not believe him, and she does not feel like
he would protect her. Cordova testified that S.Z. believes that in the past, Raymond Z. has put her
in a position of allowing her to be abused by someone else. Cordova testified this behavior by
Raymond Z. has been harmful to S.Z.’s emotional and physical well-being.
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Cordova also testified that during the pendency of the case, Raymond Z. tested positive for
cocaine twice. Since April 2017, however, all drug tests have been negative. Also, during the
pendency of the case, Raymond Z. has had three different girlfriends. Cordova testified that
Raymond Z. has completed everything on his service plan. He has housing and is employed. But,
according to Cordova, he has not met his goals, partly because S.Z. does not trust him.
Cordova testified that S.Z currently lives in a foster home, which has been a good
placement for her but has no potential for permanency. According to Cordova, S.Z. is doing really
well in school, and since the time she has been in the Department’s care, she has made positive
improvements. S.Z.’s attitude has changed, and she is no longer quick-tempered. She is working
on managing her anger through therapy. Cordova testified it is in S.Z.’s best interest to be free for
adoption in a stable home that is willing to allow her to maintain visitation with her siblings.
Shirelle Gibbs is the caseworker assigned to the companion termination case involving
Raymond Z.’s three sons who are S.Z.’s half-brothers. Gibbs testified that in June 2017, Raymond
Z. told her that he and Victoria M. had agreed that they would work their service plans, get their
children back, and go back to being in a relationship. Gibbs admitted, however, that at the time of
trial, she was not aware of Raymond Z. and Victoria M. being in a relationship. According to
Gibbs, the fact that Raymond Z. and Victoria M. could return to a relationship concerns the
Department because of the domestic violence and drug issues. Gibbs described the relationship
between Raymond Z. and Victoria M. as “toxic” and testified that a home with both Raymond Z.
and Victoria M. would not be a stable place for S.Z. to live.
In speaking with Victoria M., Gibbs learned that during the six-year relationship between
Raymond Z. and Victoria M., they had a pattern of breaking up and then getting back together
again. Gibbs testified she believed this pattern could happen again in the future.
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Gibbs testified Raymond Z. did complete his service plan and does have a new apartment,
which appears to be appropriate. However, when Gibbs visited the apartment, it did not appear to
her that Raymond Z. was living there alone. When she asked him about it, he just chuckled and
did not answer “yes” or “no.”
S.Z.’s counselor, Bruce Pollack, testified that S.Z. had opened up to him about her family
situation. S.Z. told him she did not like her stepmom, Victoria M. S.Z. described Victoria M.
abusing her by hitting her on her leg and head. S.Z. also told Pollack that she reported the incidents
to her father, but he did not do anything about them. S.Z. told Pollack she does not trust her father
and she does not believe what he says. According to Pollack, S.Z. believes that if her father gets
involved with a girlfriend, her father will always take the girlfriend’s side. Pollack testified S.Z. is
very protective of her younger siblings and reported that she feels more like a mom to them than
a sister. S.Z. told Pollack she does not want to go back home and wants to be adopted. She told
Pollack that although she loves her father, she does not trust him.
Pollack testified that he does not believe it would be best for S.Z. to return to her father.
According to Pollack, it is always a red flag when a child says she does not want to go home. In
his experience, 99% of the time children say they want to go home no matter what the situation is.
Pollack testified that at one point during this case, family counseling was suggested; however, it
never happened because S.Z. was not open to it. Pollack testified he could not do the family
counseling himself because, as S.Z.’s individual counselor, he would have a conflict.
Raymond Z. testified that he got custody of S.Z. from her mother in 2015, and she came to
live with him and Victoria M. He testified that he currently has no relationship with Victoria M.,
does not have a girlfriend, and does not want one. He testified he sees Victoria M. when they have
visitation with the children, but otherwise has no contact with her. He admitted mentioning to
Gibbs in June of 2017 that he wanted to get his children back and then reunify with Victoria M.
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because he thought there was hope. But, now he knows that is not what he wants for his children.
Raymond Z. claimed that he had had a change of heart and no longer plans to return to a
relationship with Victoria M.
Raymond Z. testified that he wants S.Z. to come live with him and that he is willing to
work on the relationship with her. About four or five months ago, he suggested family counseling
to the Department, but was told the individual counselors had to agree on that. Nothing ever
happened with regard to family counseling. Raymond Z. testified that when he sees S.Z., they talk
about school and how she is doing. According to Raymond Z., S.Z. told him she wants to finish
school at the school she is now attending. Raymond Z. testified S.Z. had said if things went well
and they reunified, she would be more than happy to live with him again. According to Raymond
Z., S.Z. has told him during their visits that she wants to maintain a relationship with him.
Raymond Z. believed they had a strong relationship and just needed to work on the little things.
He testified that if the court decided not to terminate his rights, he was willing to do whatever is
required of him to work on the relationship with S.Z.
According to Raymond Z., S.Z. has told him she wants to come home but fears he will get
back in a relationship with Victoria M. He keeps telling her, however, that will not happen.
Raymond Z. testified that S.Z. fears his past relationship with Victoria M because S.Z. and Victoria
M. did not get along, and S.Z. alleged abuse against Victoria M. Raymond Z. testified he
confronted Victoria M. about the alleged abuse. According to Raymond Z., there was an occasion
when he tried to stop Victoria M. from cutting S.Z.’s hair, but Victoria M. threatened him with
scissors, so he called the police. The police came and talked to Victoria M., but did nothing about
it.
Raymond Z. admitted to a history of domestic violence between him and Victoria M.
Raymond Z. claimed the domestic violence was more verbal than anything else. Raymond Z.
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claimed S.Z. had witnessed arguments, but not quarrelling, between himself and Victoria M. He
admitted that S.Z. had, on more than one occasion, seen him put hands on Victoria M., but he
claimed he was only restraining Victoria M. to prevent her from hitting him. Raymond Z. also
admitted he knew about Victoria M.’s drug use, which occurred while she was caring for the
children. He testified that at one point, he tried to get his sister and brother take S.Z. out of the
home. However, they did not want to help, so S.Z. remained. When asked whether he would agree
that he had not always provided safety and stability to S.Z. in the past, Raymond Z. replied, “No,
I wouldn’t agree with that because I have provided safety and stability for [S.Z.] always. It was
just under these circumstances I did not.”
Raymond Z. further testified that while Victoria M. never laid hands on their three sons,
she did on S.Z. Raymond Z. testified that when S.Z. was about twelve or thirteen years old, he
saw, on more than one occasion, Victoria M. spanking S.Z. on the butt. However, he testified he
was not aware of the other abuse alleged by S.Z.
Raymond Z.’s counselor, David Bonnet, testified that he received the referral from the
Department, but has closed the case because he feels like Raymond Z. has accomplished
everything they set out to do and counseling is no longer needed. Bonnet testified that during the
counseling, Raymond Z. had to work through a lot of disappointment and pain over the loss of his
children. According to Bonnet, Raymond Z. had made peace with it and is ready for whatever
happens.
Bonnet testified he has no reservations about Raymond Z. reunifying with his children.
Raymond Z. has discussed his relationship with his ex-wife quite frequently. Bonnet admitted that
the relationship was very unstable and would not be a healthy relationship to expose children to.
Bonnet also admitted it was a bad judgment on Raymond Z.’s part to know of Victoria M.’s drug
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use and expose S.Z. to it. Bonnet also admitted he had not met S.Z., and the only source of his
information was Raymond Z.
Patrick Vargas, Raymond Z’s drug counselor, testified that Raymond Z. had been
successfully discharged from the drug program in January 2018. Raymond Z. had completed the
Intensive Outpatient Program and was moving to supportive outpatient treatment once a week.
Vargas testified Raymond Z. had tested positive for drugs in July 2017. However, his last drug test
in January 2018 was negative.
At the close of the testimony, the trial court requested arguments from the attorneys. After
ascertaining that the Department, S.Z.’s ad litem and the CASA volunteer were all recommending
termination, the trial court took the case under advisement until after the trial of the companion
case involving termination of Raymond Z.’s rights to his three sons. Then, on February 7, 2018,
the trial court signed an order terminating Raymond Z.’s parental rights to S.Z.
SUFFICIENCY OF THE EVIDENCE
Parental rights may be terminated only upon proof of clear and convincing evidence that
(1) the parent has committed an act prohibited by section 161.001(b)(1) of the Texas Family Code,
and (2) termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)
(West Supp. 2017). Here, the trial court found four grounds supporting termination of Raymond
Z.’s parental rights under section 161.001(b)(1). Raymond Z. argues there is legally and factually
insufficient evidence to support all four grounds.
When the legal sufficiency of the evidence is challenged, we look at all the evidence in the
light most favorable to the trial court’s 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.O.A., 283 S.W.3d 336,
344 (Tex. 2009). “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
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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.” Id. “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.” Id. “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.” Id. at 344-45.
When a parent challenges the factual sufficiency of the evidence on appeal, we look at all
the evidence, including disputed or conflicting evidence. Id. at 345. “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.” Id. In reviewing termination findings for factual sufficiency,
we give due deference to the factfinder’s findings and do not supplant its judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
With regard to the trial court’s finding pursuant to section 161.001(b)(1)(D), Raymond Z.
argues the evidence is legally and factually insufficient that he knowingly placed or knowingly
allowed his child to remain in conditions or surroundings that endangered the physical or
emotional well-being of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (West Supp.
2017). Subsection D permits termination based on a single act or omission by the parent. In re
R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
The term “endanger” means “to expose to loss or injury.” Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.J.B., No. 04-14-00299-CV, 2014 WL 4218845,
at *2 (Tex. App.—San Antonio 2014, no pet.). Although “‘endanger’ means more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not
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necessary that the conduct be directed at the child or that the child actually suffers injury.” Boyd,
727 S.W.2d at 533; see In re J.J.B., 2014 WL 4218845, at *2 (explaining that “[a]busive or violent
conduct by a parent or other resident of a child’s home can constitute a condition that endangers
the child’s physical or emotional well-being within the meaning of section 161.001(b)(1)(D)”).
“Although the parent need not have certain knowledge that an actual injury is occurring, the parent
must at least be aware of the potential for danger to the child in such an environment and must
have disregarded that risk.” In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied).
The evidence at trial showed that, at the time of removal, fourteen-year-old S.Z. had lived
with Raymond Z., Victoria M., and S.Z.’s three half-brothers for about three years. During the
time S.Z. lived there, Victoria M. physically abused S.Z., including hitting her on her legs and
head. Victoria M. also locked S.Z. in her room at night. Although S.Z. reported the incidents to
Raymond Z., he did not protect S.Z. from the abuse. Further, S.Z., along with her three younger
brothers, witnessed domestic violence between Raymond Z. and Victoria M. When the domestic
violence occurred, S.Z. was the one protecting her younger brothers.
The evidence also showed that S.Z. was not only aware of Victoria M.’s illegal drug use
but was taken by Raymond Z. and Victoria M. to a drug dealer’s house. And, although Raymond
Z. tested negative for drugs during the months leading up to trial, he nevertheless tested positive
for cocaine on two occasions during the pendency of the case. And he admitted to providing
Victoria M. with money to purchase drugs, which he knew she used while caring for the children.
In short, the evidence showed that Raymond Z. was aware that S.Z. was being abused in
her own home, and was exposed to domestic violence and illegal drug use. However, Raymond Z.
failed to take measures to protect S.Z. There was evidence this behavior by Raymond Z. was
harmful to S.Z.’s emotional and physical well-being. We therefore conclude the evidence is legally
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and factually sufficient to support termination of Raymond Z’s parental rights on section
161.001(b)(1)(D) grounds. 3
Raymond Z. also argues the evidence is legally and factually insufficient to support the
trial court’s finding that termination of his parental rights is in his child’s best interest. See TEX.
FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2017). Under Texas law, there is a strong
presumption that the best interest of a child is served by keeping the child with a parent. In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006). And, in determining whether the child’s parent is willing and
able to provide the child with a safe environment, a court should consider the factors set out in
section 263.307 of the Family Code. See TEX. FAM. CODE ANN. § 263.307 (West Supp. 2017). In
addition to these statutory factors, in considering the best interest of the child, a court may also
consider the nonexclusive list of factors set forth by the Texas Supreme Court in Holley v. Adams,
544 S.W.2d 367, 372 (Tex. 1976). See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Further, in
determining whether termination of the parent-child relationship is in the best interest of a child, a
court may judge a parent’s future conduct by her past conduct. In re E.D., 419 S.W.3d 615, 620
(Tex. App.—San Antonio 2013, pet. denied).
At trial, the evidence showed not only that Raymond Z. had failed to protect S.Z. from
abuse, domestic violence, and drug use in the home, but the evidence further showed that S.Z. was
upset and disturbed by the situation in her home and felt unsafe there. There was evidence that
S.Z. does not feel like she can trust Raymond Z. to protect her and she does not believe what he
says. The evidence showed S.Z. had been consistent about not wanting to go back to her father.
Her counselor testified that, in his experience, it is always a red flag when a child does not want to
3
Because only one ground under section 161.001(b)(1) can support the termination of parental rights and because we
have determined that sufficient evidence supported the ground under section 161.001(b)(1)(D), we need not determine
whether there is sufficient evidence under subsections (E), (O), or (P). See TEX. FAM. CODE ANN. § 161.001(b)(1)
(West Supp. 2017).
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return home because 99% of the time a child will say she wants to go home no matter what the
situation is. And, family counseling was not offered because S.Z. was not open to it. Although
Raymond Z. had completed his service plan, obtained housing, and obtained employment, the
Department caseworkers were of the opinion he had not successfully met his goal of demonstrating
he would protect S.Z. from future abuse. And, although family visits at the time of trial were
appropriate, earlier visits between Raymond Z. and S.Z. showed he still viewed S.Z. as the parent
because she was the one who had to care for the three younger children. The evidence further
showed S.Z. is very protective of her younger siblings and feels more like a mother to them than
a sibling.
The evidence also showed that Raymond Z. had tried, unsuccessfully, to find family
members who would take S.Z. He made this attempt because S.Z. was interfering with his
relationship with Victoria M. And, although Raymond Z. testified he had changed his mind about
wanting to reconcile with Victoria M. and was no longer in a relationship with her, there was
evidence presented that Raymond Z. and Victoria M. had in the past engaged in a pattern of
behavior of breaking up and reuniting over and over again. Several witnesses expressed concern
that if Raymond Z. and Victoria M. reconciled in the future, S.Z.’s emotional and physical well-
being would be endangered.
Although the Department caseworkers and S.Z.’s counselor all testified that S.Z.
consistently expressed that she did not want to go back home and live with Raymond Z., Raymond
Z. nevertheless testified that his relationship with S.Z. is strong. He claimed S.Z. had indicated she
wants to come home but fears he will renew his relationship with Victoria M. Raymond Z. said he
has assured S.Z. that he will not renew the relationship. Raymond Z. claimed he would do whatever
was required to work on his relationship with S.Z.
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With regard to S.Z.’s current placement, she currently lives in a foster home that is a good
placement for her but has no potential for permanency. She is doing well in school and has made
positive improvements. She is learning to manage her anger through therapy. The Department
caseworkers believe it is in S.Z.’s best interest to be free for adoption in a stable home. And S.Z.
reported to her counselor that she wants to be adopted.
Considering S.Z.’s age, S.Z.’s exposure to repeated domestic violence and abuse; the
pattern of behavior of Raymond Z. reuniting with the abusive step-mother; S.Z.’s mistrust of
Raymond Z. to protect her from physical and emotional abuse, Raymond Z.’s failure to regain
S.Z.’s trust during the pendency of this case, and S.Z.’s consistency in expressing her desire for
termination of Raymond Z.’s parental rights and potential for adoption, we hold there is legally
and factually sufficient evidence that termination of Raymond Z.’s parental rights is in S.Z.’s best
interest.
We affirm the trial court’s order terminating Raymond Z.’s parental rights.
Karen Angelini, Justice
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