in the Interest of C.B., a Child
2012 Tex. App. LEXIS 6217
| Tex. App. | 2012Background
- Mother is compelled to consent to termination proceedings for her child C.B.; the Department removed C.B. in March 2010 under Chapter 262 based on alleged abuse/neglect and domestic violence with methamphetamine use; the Department sought termination on multiple predicate grounds, including (O); trial court issued temporary orders finding danger and removal necessary; mother tested positive for methamphetamine while C.B. tested negative; case progressed to bench trial in November 2011; written judgment in January 2012 terminated rights solely under §161.001(1)(O) and appointed the Department permanent managing conservator; mother appealed alleging insufficient evidence to support §161.001(1)(O).
- Evidence at trial centered on domestic violence in the home, methamphetamine use by the mother, and the Department’s reliance on an affidavit and trial testimony to show abuse/neglect; testimony by a conservatorship worker described domestic violence involvement and methamphetamine use, but did not establish actual abuse/neglect of C.B.; the trial court noticed the April 2010 temporary order but did not rely on it as sufficient to prove abuse/neglect for §161.001(1)(O).
- The affidavit attached to the petition described methamphetamine use and exposure to domestic violence, but the Court of Appeals found it insufficient to prove actual abuse/neglect of C.B. under Chapter 262; the record showed no physical, mental, or emotional injury to C.B and no substantial risk of immediate harm demonstrated by the evidence.
- The appellate court reversed the termination as to §161.001(1)(O) but affirmed the Department’s appointment of the Department as permanent managing conservator; no discussion of predicate grounds (D) or (E) occurred in the final judgment.
- The court concluded that, viewed in the light most favorable to the trial court’s judgment, the evidence could not convince a reasonable factfinder that C.B. was removed for abuse or neglect under Chapter 262, legally requiring reversal of §161.001(1)(O) termination claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports termination under §161.001(1)(O). | Mother argues removal was not for abuse/neglect. | Department asserts abuse/neglect evidenced by domestic violence and meth use. | Not legally sufficient; §161.001(1)(O) not proven. |
| Legal sufficiency of proof for abuse/neglect under §161.001(1)(O). | Evidence from affidavit and trial shows risk but not actual abuse/neglect. | Department contends the evidence supports removal for abuse/neglect. | Legally insufficient; cannot prove actual abuse/neglect. |
| Effect of temporary order as evidence of abuse/neglect. | Temporary order findings do not establish actual abuse/neglect. | Temporary order supports danger and removal. | Temporary order does not satisfy §161.001(1)(O) evidence. |
| Court erred by not addressing (D) and (E) predicates given final judgment. | Appeal disputes reliance solely on (O). | Written judgment based only on (O). | Not necessary to address (D)/(E); reversal on (O) suffices. |
Key Cases Cited
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (clear and convincing standard; termination requires both predicate and best-interest finding)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (articulates standard for reviewing sufficiency in termination cases)
- Mann v. Dep't of Family and Protective Servs., No. 01-08-01004-CV, 2009 Tex. App. Lexis 7326 (Tex.App.—Houston [1st Dist.] 2009) (recognizes that risk-based evidence may be insufficient to prove abuse/neglect under (O))
- In re H.S.V., 2012 Tex. App. Lexis 5470 (Tex.App.—San Antonio 2012) (case discussing evidence of abuse/neglect under (O) when absence of actual harm is shown)
- In re S.N., 287 S.W.3d 183 (Tex.App.—Houston [14th Dist.] 2009) (abuse/neglect proof required for removal under Chapter 262)