in the Interest of S.S., a Child
2015 Tex. App. LEXIS 8599
Tex. App.2015Background
- Parents James and Julie appealed termination of their parental rights to newborn S.S.; the Department sought termination after prior removal of older child L.E.S.
- Long history of domestic violence by James against Julie beginning when she was a minor, and prior convictions including injury to a child; drug use (methamphetamine) by James while children were in his care.
- In 2013 L.E.S. tested positive for methamphetamine; both parents had positive drug tests; service plans and a no-contact court order were issued (January 2014) during a monitored return to Julie.
- Despite the no-contact order, Julie drove James in April 2014, visited him in jail multiple times with the children, and discussed preserving/using a drug “stash” with James on a recorded jail call introduced at trial.
- Trial court found statutory grounds for termination under Tex. Fam. Code § 161.001(1)(E) (and also (D) and (O) though only (E) was necessary) and that termination was in S.S.’s best interest; parents challenged sufficiency of evidence and admission of the jail recording.
Issues
| Issue | Plaintiff's Argument (Department) | Defendant's Argument (James/Julie) | Held |
|---|---|---|---|
| Whether evidence was legally and factually sufficient to terminate James’ parental rights under §161.001(1)(E) (endangerment) | James’ history of domestic violence, drug use, criminal convictions, and conduct exposing children to drugs and instability support termination | James argued evidence insufficient to show a voluntary, deliberate course of conduct endangering S.S. | Held: Sufficient — court affirmed termination under §161.001(1)(E) for James |
| Whether evidence was legally and factually sufficient to terminate Julie’s parental rights under §161.001(1)(E) | Julie repeatedly violated no-contact orders, exposed children to James and drugs, had positive drug tests, and planned reunification with James — supporting endangerment | Julie argued S.S. was not born when much of James’s abusive conduct occurred and that her actions didn’t rise to clear-and-convincing endangerment | Held: Sufficient — court affirmed termination under §161.001(1)(E) for Julie |
| Whether admission of a jailhouse audio/video recording of James and Julie was barred by spousal communications privilege | Recording was admissible and not barred by privilege under the facts and applicable law | James and Julie contended the communication was privileged under Tex. R. Evid. 504 | Held: No reversible error — admission upheld |
| Whether best-interest finding was challenged | Department asserted termination was in child’s best interest based on evidence of danger and instability | Parents did not challenge the best-interest finding on appeal | Held: Best-interest finding stands; not contested on appeal |
Key Cases Cited
- Holick v. Smith, 685 S.W.2d 18 (Tex. 1985) (parental rights are fundamental and termination statutes construed in favor of parents)
- Troxel v. Granville, 530 U.S. 57 (2000) (parents’ constitutional liberty interest in childrearing)
- In re A.B., 437 S.W.3d 498 (Tex. 2014) (clear-and-convincing standard and exacting appellate review in termination cases)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (parental conduct toward others can support endangerment for unborn/younger children)
- In re J.P.B., 180 S.W.3d 570 (Tex. 2005) (legal-sufficiency standard for termination review)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (factual-sufficiency standard and reviewing disputed evidence)
- Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987) (endangerment does not require direct harm; exposure to jeopardy suffices)
- Walker v. Tex. Dep’t Family & Protective Servs., 312 S.W.3d 608 (Tex. App.—Houston [1st Dist.] 2009) (illegal drug use may support termination under §161.001(1)(E))