*1 S.H.A., Interest of a Child. In the
No. 05-85-00692-CV. Texas, Appeals
Court of
Dallas.
Feb. 1987.
Rehearing April Denied 1987.
рoints judgment of error and affirm the the trial court. record reflects
illegal aliens came to the States who United fourth, 1981. February was born in United States on employed, has 1982. father been *3 time, working from time to as a construc- a tion and as a dishwasher at res- worker family’s taurant. economic situation was characterized several witnesses as trial At the time of “low-income.” 1985, the parents March had another child. speak English, do and through interpreter. trial testified at an brought The child’s situation was first the attention of Child Welfare approximately when the child was sixteen hospital- months old. The child had been May ized in 1983 for an ear infection and treating physician notified anemia. Rosenfield, Cuellar, Joseph Guardi- Jesse public department health about Litem, Dallas, appellant. an for Ad Consequently, Barbara child’s condition. Templeton, Atty., nurse, Dist. Brown, Maridell Asst. public health visited the Parmer-Hail, Gary Arey, Elizabeth Asst. May just C. on after the child child’s home Dallas, Attys., appellee. Dist. hospital. from the Brown was released filthy; the child was that he
testified that eating he crying; was and that was cookies dirty Brown discussed the off of the floor. improve the need to child’s medication and SCALES,1Justice. hygiene the mother. the child’s A_ A_ S_ Appellants, mother “seemed dis- Brown stated that thé A_(“the parents”) appeal the trial from say.” anything I had to interested parental judgment terminating court’s their ap- missed doctor’s the mother After child”). rights (“the to their son suit child, Brown made a pointment brought by appellee County was Dallas 15. At to the home June second visit Depart- of the Texas Child Welfare Unit testified, time, child Brown had (“Child ment of Human Wel- Resources thick, coming pus” out of “pus, very white fare”). jury’s Based on the answers to ear, his had a burn on arm right and he issues, judg- special trial court entered oozing.” “pussy Brown stat- (1) engaged in ment that: each had condition,if left untreat- ed that the conduct, knowingly placed child ed, health dangerous to the child’s be could conduct, persons engaged in who Brown the risk оf infection. because of or emotional well- appeared observed (2) being of that termination the moth- “very for” and that poorly cared rights would be in the child’s he pick up the child when er did not error, points of best interest. In six crying. jury’s findings, contend- attack the keep another did not the mother legally and factual- After that the evidence public child at appointment for the ly insufficient. We overrule las; retired, Scales, Justice, sitting by assignment. 1. The Honorable R.T. at Dal- Texas Appeals, District of Fifth Court of clinic, the child’s and Dr. Paul Prescott was called in as a Brown rescheduled health per- 22. Brown for June appointment consultant on the child’s case. Dr. Pres- nutritional, medical, develop- formed cott testified that failure to thrive “means the child. The child was 28 tests on mental living up growth is not his own height weighed sixteen inches potential.” He said that the “failure to height This eight ounces. pounds, syndrome explained thrive” is best as a percentile for weight is the thirtieth below backache; “symptom,” like a headache or infant, average sixteen-month-old there are “five-hundred and some-odd is a medical defi- that “that Brown testified thrive,” including causes of failure to or- The statistics for failure to thrive.” nition nutritional, ganic, “psychosocial” growing “the child was indicated that causes, such as where a mother has failed told The mother normal child should.” as a way. the child in some to nurture one-half she fed the about Brown that Prescott stated that once failure to Dr. tortillas; day; soup milk each gallon of diagnosed, medical causes are thrive is week; four times a eggs about once a *4 Here, child’s failure to week; ruled out first. occasionally week; a chicken once cheese; soup and beans. due to medical reasons. Dr. thrive was not fruits and proper was not a stated that this that the cause of this Brown Prescott testified Brown advised the for an infant. diet failure to thrive was malnutrition. child’s hospitalized that the child should be mother not, however, positively Dr. Prescott could referred the immediately. Brown causes possibility of emotional exclude program that offers federally funded a to thrive. The failure of the child’s failure infants, a referral to and also made food to age, this syndrome, in a child of to thrive Welfare. Child effects, as de- long-term such can have disabilities, referral, learning intelligence, of Brown’s consequence a creased As Martinez, “in-take” worker growth, an and increased permanently Melba stunted Welfare, on home visited Child testified that it infection. Prescott risk of child 23. Martinez testified June family of child in a for one is common weak, thin, slug- very appeared very from failure to to suffer several children showed; “pro- cage he had a gish; his rib medi- “if there is no He stated that thrive. abdomen”; face and his truding stomach or malnutrition, that’s ac- reason, it’s cal ap- older children very sad.” The “looked worrisome, we then tually more moth- relatively healthy. The peared to be deprivation maternal calling it the start she fed er told Martinez that get emotional you into Then syndrome. “sopas,” him she fed day, and that twice reason, this one some deprivation. And for ex- pasta. Martinez mixture of rice and Dr. Prescott being scapegoated.” child is health to about the child’s pressed concern syn- deprivation the maternal testified that mother, felt that the the mother but purely nutritional on may be based drome thin, as one of her “just naturally child was “is ne- only one child but problems, testi- Martinez children had been.” other what reason.” knows for who glected, appear mother “did fied diagnosis of that his stated Dr. Prescott con- to be that she needed understand child’s of this the cause visit, malnutrition of the home As a result cerned.” part in based thrive was provided failure to arranged food to be Martinez gain over three weight comparative the child to see family and to take child’s May hos- During Martinez the child’s day, June periods. The next doctor. time 1¾ child to 1½ to and the about transported gained the mother he pitalization, During the day. Medical Center. weight Children’s each ounces almost stay, gained he hospital June child’s 24 at June hospitalized on The child was During the day. weight each ounces treat- days for Hospital for six Parkland stays, hospital period between thirty-day ear and an on his arm ment of the burn average ¼ ounce gained child diagnosis was that infection. Part of the An at home. he was day while child, weight per thrive” a “failure to the child was food, age gains eater; occasionally he hoarded average of this about ½ child taking putting napkin it in a it to bed per day. ounce Richmire testified that the child with him. reason, Dr. Prescott recom- For this care; “progressed quickly” while in her he placed mended that child be foster active, weight, gained more became discharged he from the care when was “happy and more seemed secure.” hospital Dr. testified on June 30. Prescott he health Richmire stated when the child was then believed was to her after a visit with his returned home danger. “really unmanageable.” parents, he was placed was a foster home child night sleep woke from at discharge hospital. The upon from the fos- anger.” During those visits “terrible Green, parent, Molly testified that when ter present, there which Richmire was home, the child arrived at her he had exist- child” nothing “done to the mother bruises, marks,” “bite sores that sleepless nights, “unless it cause would cigarette looked like burns on arm. interaction, very ignoring him.” little constant Green stated the child needed attention; “hysterical” he if became has stated that the child inordi- Richmire sight; noises, sirens; out of his that he Greens were nate such as fears loud screamed, cry, “piercing did not bugs; men. “Dif- and Mexican-American Green; screams,” picked up by he until was times, pub- out in ferent when we’ve been a “tremendously he was lic, ap- a Mexican-American man has ... voluntarily, child.” The eat him, being proached just nice and kind and very un- and Green testified that him, and he screams.” trying to talk with *5 age. usual child of this for a Green stated to does not react in this manner child problems getting that in the child she had other men. too, this, go sleep, that and was Zuniga assigned to this case Mario was age. this unusual for child of permanent as caseworker July was removed child from Green’s He at trial for Welfare. testified Child home, injuries after he sustained to his family help create a that his role was to head and face. Green stated that she dis- so safe for that environment covered on the child’s chin and bruises family. Zu- could be returned neck, that and determined the child was parents’ home niga after first visited baby injuring by jump- himself in the bed placed had in foster care. the child been ing down, up hitting head on and the house was unsani- Zuniga stated that railing. later learned the child Green apartment tary that he located better and baby had in a Mar- never before been bed. day-care center. He family near a for the tinez, caseworker, the first Child Welfare transported the for mother arranged testified that child was removed from appoint- to doctors’ and the other children he Green’s home because needed constant Zuniga soap for the fami- obtained ments. protect from self- attention in order to him heater; provided diapers ly; them a gave injuries. placed in a inflicted was baby, some cloth- for the and formula home he where was Zuniga toys for older children. mother, four small Richmire stated that placed child was excluding the child home children at July home 9. Marlene Richmire testi- “very, issue, “very overloaded” that, July 1983, was fied the child was lethar- arranged very depressed.” Child Welfare gic depressed; respond he did not placed children to be for three older pain; to live”— and he “didn’t have the will by Child day-care operated center object.” nearby just like an inanimate “[h]e the old- Zuniga testified that Dallas. sleep night Care The child would wake from being cared in the were minutes, er children еvery thirty screaming. Richmire concerned, for, Child Welfare was far as he had re- stated that seemed “that day receiving meals at they were pressed anger something.” The child because eat; “very picky” care. did not he was a want 4, 1983, treatment, Zuniga the medical
From June 30 to December took the child to parents’ the foster home. During in foster care. this child remained time, various workers from Child Welfare The following day, Zuniga met with the Care Dallas worked with and Child mother and father at the Child Welfare family and offered services to the Zuniga Office. testified that the father agencies arranged par- for the family. The “very angry” “it because was classes; parenting skills ents to attend accident, bad of an that we had [and] classes, went to four out of the five mother going taking business in there and class. out, the father attended one things happen and that these all Zuniga’s report par- time.” “The states: Welfare, 4, 1983, Child On December they ents stated not taken had [the goal keeping its accordance with hospital since were out child] possible, if his natural child with looking money pay to borrow to for the parents’ the child to the home. returned rent and that had sustained that [the child] However, placed the child was removed jumping mother injury off a bed.” The again care on December 29. Zuni- in foster trial she and the father had testified at period ga during he visit- testified gone “money transporta- look parents’ home and found the child ed the child to a doctor. tion” to take outside, barefoot, dirty diapers, and in parent, Also on December the foster Zuniga “very it was cold” weather. when Richmire, gen- child to a Marlene took the from that the child was removed testified Fong. practice physician, Dr. eral Robert 29 after home on December child had a Fong’s affidavit states that the injured par- and the Zuniga found the child one-inch-long eye that had cut above his ents absent from the home. cuts, multiple swelling; caused excessive Zuniga that he went to the testified bruises, body; and a and contusions on his 29 to take the ents’ home on December Fong left hand. first-degree burn on his baby a doctor’s mother and the new injury was opinion, in his testified pre-arranged appointment, as had been know, from some “physical, you due to arrived, he he mother. When with the however, stated, he Fong also blow.” gone from the family car was found the one-hundred-percent cer- not know with did *6 there, and driveway, the were caused. exactly injury the was tainty how deep gash over his with a “real child’s face shows the photograph A child lying on a The was eye,” was bed. In his eye shut. the child’s swollen cut and respond to Zuni- “glassy-eyed” and did my opinion affidavit, Fong “It is stated: into the room. ga when he walked danger if life could be that child’s] [the dirty diaper. “young A child had on a his natural to live with he continues girl,” apparently baby-sitter, a was at Rich- that he advised Fong testified ents.” home; “appeared to Zuniga that she stated applying ointments cut mire to treat the girl told Zuni- mentally retarded.” ice. you to take ga: “They want [the child] Richmire, parent, tes- foster Marlene baby new hospital.” Zuniga took the stay three-week the child’s tified that after and then took appointment to her doctor’s just re- “he had parents, his natural with Hospital. the child to Parkland first, was the child terribly.” At gressed have the treat- to us to
Zuniga’s appeared state that “He “lethargic.” case notes just Zuniga again. He sat that ing physician at Parkland told to live lost the will Once the day respond.” at least one He didn’t had occurred stared. injury discipline a he became got past have imme- earlier; parents should child that the self- “He was stated: treatment; and that Richmire problem. diately sought medical the disci- before, he wasn’t cut. in the destructive put late to stitches it was too he came when that he was problem pline child down while Zuniga had to hold the child testified Richmire the child “be- back.” cleaned because wound was hit another he would aggressive; that After was pain.” hysterical due to the came against wall; given explosive episodes behavior,” head and that he child’s “angrily food or rub spill aggressive- his own hair. where he reacts approxi- ly.” December the child Dr. her impression was Palau stated that mately twenty-two during months old. her clinical the father interview trying him “he was that hard to Purse, supervisor a Roxanne for Child right things.” say the Welfare, “very testified that she was regression” During mother, of the child her interview alarmed with the stay parents; the mother with his natural Dr. Palau learned that had been after regressed “parental family, he returned home he a child” in her “when so own as- siblings, dramatically.” suming parenting duties for her had because her mother a “nervous condi- Georgette Speers, a Welfare Child case- tion.” mother told Dr. Palau her worker, assigned has been to this case by setting committed suicide mother had June and she on the since case fire, mother, herself front of Speers the time of trial. ar- March years previously. person- about three ranged between visits the child might ality tests confirmed the mother natural and services wanting to parent have a “resistance to and the other children. She testified that adult,” product parental only present the mother is the visits where and that the mother had diffi- experience, “relatively quiet”; are when the older sib- dealing culty in of her trauma however, lings present, the visit is very mother’s death. The tests indicated During “very for the child. one stressful” internally anxiety repressed; that is intense visit, picking the child’s older sisters were depression leading diffi- great deal of up, “they actually him started throw activities; culty carrying every-day out things him across room and throw being difficulty “emotionally available to Speers him.” had to “extract” the child Dr. Palau her children.” testified situation; from the the child was “terri- understanding difficulty mother had fied,” and the mother not control her could problems; she seriousness of the daughters. Speers testified that she be- thought the child was thin. “very strongly” lieves terminated, rights if should be Based on observations home, he child were returned would “suf- history, Dr. Palau con- and his behavioral profound regression.” Speers fer recom- the child conformed with bat- cluded that mended the se- termination “because of syndrome failure to tered thrive verely capacity limited syndrome. Dr. stated that this child Palau parent this child.” consequences of fail- displayed emotional thrive, wanting to live such as “not 3, 1984, ure January On Child Welfare filed self-destructing.” Dr. Palau’s written petition temporary managing its conser- “special the child had report stated vatorship The trial over court *7 structure,” explained she and needs psychological ordered of the evaluations environment, child, in an “unstructured parents Dr. Nadine Pa- that and the and neglected," in he which was performed May. the tests in environment lau very a self-destruc- “could become Dr. testified that the intellectual Palau “in Dr. Palau testified that child.” tive of the mother and the father assessment these, it be this as could that such families they mentally in indicated are both is the ‘identified is what called one child range (I.Q. approximately retarded tested ” bearer,’ ‘symptom patient,’ 65), probably this an underesti- but was being scapegoated; child is this that differences, to even mate due cultural happening to other sib- that “[w]hether though Spanish. given all tests were in necessarily mean that does not lings or not person- Dr. Palau testified that the father’s relationship.” is safe in child confusion; ality sensi- tests showed mental that, she time stated criticism; Dr. Palau tivity frustration toler- to low child, would she ance; possibility may parents that he “be saw returning she did recommend the child to the not recommend that the child be regard family’s parents, parents. returned his natural even if the natural resources, testimony during financial Dr. Palau stat- the trial indicated that limited ability family’s parent” this a factor in the have “the ed that was child, “financial stress can af- the child “has such emotion- problems family functioning.” problems.” Dr. Palau testi- al She stated that the child is fect that, parents may “emotionally handicapped.” have On cross-ex- fied while the amination, “No, sir, capacity parenting Richmire stated: I intellectual learn skills, degrees, experience.” they she “not sure” have no but I have was through” put into able to “follow Dr. Carol Owen testified that she exam- practice what learned. complaints leg ined the about 20, 1985, Purse, cramps February super- on about two Roxanne the Child Welfare case, responsible for de- weeks before trial. She stated that visor on this age, years, for his three ciding should seek was small whether Child Welfare well-nourished, parental rights to that he was cheerful to terminate the but decided, Dr. did not find Purse testified that she affectionate. Owen the child. any problem legs, she psychological reported, with the child’s after the tests were rights terminat- did find that one ear was infected. She that the should be ear infections are common for Welfare had been on stated that ed this case. Child any there nine months at that small children and that the case for about draining pus con- out of the infected ear. time. Purse testified that she was spite “that in of all the efforts cerned Child Care Dallas workers testi- Several expended, seemed to be still had been we They parents. on testi- fied behalf one, square parents’] in terms of abili- [the significant had made fied that for” child. Purse stated that ty to care improvement “parenting skills” and their strongly do she believes that returned to the that the child should be capacity not have the to care for Morales, Nancy a social parents. natural the child “cannot survive and that manager for Child Care Dallas worker re- family environment” —if the child were center, day-care testified that the turned, emotionally.” he would “wither economic; largely family’s problems were caseworker, tes- Zuniga, the Child Welfare capable address- that the were May he left the case in tified that when needs; “with the and that family still needed “24-hour fami- family do well help, I think the will proper that, He stated with the vari- ly services.” Morales stated and can do well.” only re- agencies’ help, the- mother’s ous due, part, family’s problems were baby’s sponsibilities keep the new were explained that in cultural differences. She keep appointments the chil- doctor very impor- Mexico, family is the “extended clean, mother “was not dren and that the children, if the tant, and the care of He recommended termi- able to do so.” percent, there do one-hundred parents don’t parental rights. nation of or a godmother grandmother or always even, for the child.” can care court-ap- neighbor, who Mary Byrne, a volunteer for the United moved “Focus,” gathered When agency informa- pointed isolated,” States, “they really were on the case and also recommended tion fell children caring for the responsibility of opin- testified termination. She totally the mother. returned, “I ion, don’t if the child were it.” think he would make Zuniga, the Child testified that Morales *8 caseworker, told her had 1985, the Welfare trial in March At the time of the child not return old, Child Welfare years three approximately child was period three-week after the at the Rich- still in foster care and he was “did that, December because at the mire Richmire testified home. care” medical attempt to seek affectionate, any trial, make the child was time Morales hurt. he was after the child for hugs her. She testified he and kisses that, at time she asked the moth- The mother testified testified that had also trial, old, years take child to a doctor had why she didn't she was 25 she six er 1983; the injured he was in December after children. She stated that the reason to, she told Morales that wanted mother removed from her care was child was no, her because father told but he had an ear infection and burn because tomorrow, coming “the case worker was they on arm. The mother said that did his it.” take and he would care for the child not seek medical attention he himself in December 1983 when hurt that failure to thrive explained Morales night at and “we didn’t have because was “another by malnutrition and that is caused transportation.” relationship dysfunctional be- factor infant.” the mother and tween child testified that if the The mother her, Banda, for Child “feed him a social worker she would Diane were returned to Dallas, food”; him”; had been on this case since Care feed him better “take care that, April of 1984. She testified with day”; “feed on the “three time a him family, proper services to hour”; enjoy him him- and "take outside to his natural could be returned to child care for self.” She stated that she could Dallas stated that Child Care ents. She improved a the child “because now we have day during could take care of child to feed lot.” that she learned how She said family. to the Banda and offer services parenting children at the and care recommend termination of did not she attended in November classes which rights. was returned to just before home December. Weiser, work the director social Joan Dallas, that there for Child Care testified evidence, jury answer- Based enough preparation for the child’s was not following special ed issues: parents' home in December return to the SPECIAL ISSUE NO. however, stated, also 1983. She convincing you by find clear and Do enough” for “progressed had knowingly evidence [the mother] Weiser child to return home at that time. knowingly placed or allowed [the child] pro- said that Child Care Dallas had been surroundings or remain in conditions viding support services endanger or which prior months De- about three-and-a-half well-being of child]? [the cember 1983. Do or “We Not” ANSWER “We Do” Weiser did not recommend termination NOT ANSWER: WE DO parental rights. that the child She testified SPECIAL ISSUE NO. day program offered enter the home could convincing by you Do find clear Dallas. commented Child Care Weiser engaged in evidence mother] [the chil- Dallas has “raised the that Child Care knowingly placed child] conduct [the and that many dren of families” in Dallas engaged in persons who people’s children that “raise other emo- physical or handle them.” can’t well-being of child]? [the trial testified Both Do Not” Do” or “We ANSWER “We interpreter. The stated through an father WE DO ANSWER: “be- that he would like the child returned 3, you No. regard Special Issue mean, him, I cause before was mean you if have answered instructed that He I did not have contact with him.” 2 “We Special No. or No. Issue either relationship said that his Special following Do”, then answer the normal, badly with I did “wasn’t otherwise, do not answer No. Issue chil- My right with the him. facts weren’t No. 3. Special Issue I “Today dren.” He stated: am different.” 3NO. SPECIAL ISSUE home, The father testified while at convincing you find clear and Do put had food his own hair never rights men. appeared fearful of Mexican *9 (D) is in the best interest knowingly placed knowingly of or [the mother] [the allowed the child to remain in condi- child]? surroundings endanger tions or Do” or which ANSWER “We “We Do Not” physical well-being or emotional WE DO ANSWER: child; or SPECIAL ISSUE NO. (E) engaged in knowingly conduct or you convincing Do find clear and placed persons knowingly evidence that the child with who en- [the father] placed knowingly gaged endangers or allowed in conduct which [the child] surroundings or to remain conditions physical well-being or emotional endanger physical or which emotional child; evidence that SPECIAL ISSUE ANSWER: WE DO NOT ANSWER “We well-being of [the child]? Do you find [the father] Do” or NO. 5 clear and “We engaged in convincing Do Not” of the child. (2) and in [******] termination addition, is in the the court further finds best interest knowingly placed conduct or [the child] (Vernon TEX.FAM.CODE ANN. 15.02 § engaged in conduct persons with who Supp.1986). endangered physical or emo- which parental rights under order terminate well-being of [the child]? 15.02, finding there must be both a section Do” or “We Do Not” ANSWER “We parent has committed one of the ANSWER: WE DO 15.02(1) acts under section enumerated 6, you regard Special Issue No. finding termination is in the best you if are instructed that have answered the child. Richardson v. interest Special No. 4 or No. either Issue 5 “We Green, (Tex.1984). Do”, following Special then answer Here, affirmatively jury answered otherwise, do not answer Issue No. (E) of special issues on subsection based Special Issue No. 6. 15.02(1) to issues on sec- section based NO. 6 SPECIAL ISSUE 15.02(2); judg- trial court rendered tion convincing you by clear and Do find terminating parental rights based on ment rights of that termination of the findings. these interest of the best [the [the father] error, points fourth In their first and child]? no evi- parents contend that there was Do” or “We Do Not” ANSWER “We dence, alternatively, evi- insufficient ANSWER: WE DO findings jury’s dence to special These issues track the statu which en- parent engaged each Texas tory language in section 15.02 of the well-be- dangered 15.02, pro Family Section Code. Higgins Relying the child.2 involuntary for the termination vides Unit, County Dallas Child Welfare part: pertinent parental rights, states 1976, no (Tex.Civ.App. —Dallas requesting termination of petition A involuntary writ), argue relationship respect parent-child with rights under sub- may petitioner parent to a who is not (E) of each requires evidence section if court finds that: granted towards “aggressive behavior ent’s (1) parent has: case in this the evidence child” and * * * * * * behavior physically abusive reflect does not portion added). parents attack that brief, phasis jury’s parents bifurcate the 2. In their five, “knowingly placed findings regarding findings special numbers two and issues "engaged engaged con- persons in conduct or know- that each ingly who child] [the five, persons who en- placed child] discussed points [the error two and duct” physi- gaged in conduct which below. (em- well-being child]” of [the cal or emotional
83 (D) jury’s finding subsection parents directed child. based on by the towards at “must rest on other evidence.” Id. 750. contend that the child’s also directly or problems “cannot be physical interpreta We hold that this Court’s part to conduct on the indirectly attributed (E) Higgins is incor tion of subsection disagree parents].” We of [the rect, Higgins overrule to the extent we their and overrule parеnts’ contentions (E) requir it construes subsection In points of error. so fourth first and ing aggressive or abusive behavior directed decision to doing, Higgins we overrule Higgins, child. 544 towards the See opinion it conflicts this extent that at so hold for four rea S.W.2d 749. We 15.02(1)(E) and, applying section sons. case, that the evidence is of this hold facts First, interpretation Higgins factually sup- legally and sufficient both language plain the statute. violates parent jury’s findings that each port the (E) provides for termination Subsection engaged in conduct which is in the parental rights, where termination well-being of or emotional
physical
child,
where the
best interest
“engaged in
... which endan
conduct
has
well-being of
gers
physical
or emotional
interpreta-
Court’s
first consider this
We
provision
require
This
does not
the child.”
15.02(1)
(E) of section
of subsection
tion
behavior,”
require
“aggressive
nor does
Family
Hig-
articulated in
Texas
Code
directed towards the
that the conduct be
jury answered af-
Higgins,
gins.
is
language
pre
of a statute
child. The
tracking
firmatively
special
issue
selected,
carefully
sumed to have been
negatively
(D)
and answered
subsection
phrase
to have
presumed
is
every word
tracking
(E),
special
issue
subsection
meaning
intentionally, with a
been used
jury’s
from the
an-
the reverse situation
State, 367
purpose. Perkins v.
S.W.2d
in this case.
swers
(Tex.1963);
140,146
v.
A.
Nichols William
court,
comparing
subsec-
Higgins
396,
Inc.,
(Tex.App.
399
Taylor,
S.W.2d
(E)
(D)
(E),
subsection
tions
stated that
writ). Every
—Corpus
no
Christi
legislature
clearly
by the
“was
intended
pre
must be
a statute
word excluded from
provision concerning something more
abe
particu
excluded for a
sumed to have been
aggressive
neglect, namely
than
behavior
v. Terrell & Gar
lar reason. Cameron
resulting
physical
or emo-
toward a child
(Tex.1981).
Inc.,
rett,
618 S.W.2d
Higgins, 544 S.W.2d
749.
tional abuse.”
into a
insert additional words
We cannot
The court reasoned:
necessary
it is
statutory provision, unless
interpretation
legislative
intent.
We believe that
to the clear
give
effect
Corp.,
explains
Capital
the ratio-
the twо subdivisions
v. Fort Worth
Hunter
(Tex.1981).
may
separating
legislature in
Courts
nale of the
however,
guise of construc
not,
into
under the
grounds
two
two
it,
by adding
tion,
words
separate
legislature
If the
amend a statute
subsections.
such additions
how desirable
to cov- no matter
had intended for both subsections
Dal
Servicing Corp.
AM.
evil,
logi- might
no
seem.
would be
er the same
there
(Tex.Civ.
747, 748
State, 380 S.W.2d
las v.
separating them into two
cal reason for
short,
1964, writ).
Therefore,
App.
grounds.
hold
we
distinct
—Dallas
power
usurp
may
courts
(D)
where
applicable
is
that subsection
reading
a statute lan
into
legislature
neglected while sub-
the child has been
is not
there. Goldman
guage (E) applicable where the child is
section
Torres,
Tex.
per-
by a
aggressive conduct
subjected to
clearly
interpretation
(1960).
Higgins
abuse.
causing physical or emotional
son
(E) which
subsection
language to
adds
held
while
The court
Id.
as written.
in the statute
been
the child had
tending to show that
(E) contemplates
Second, subsection
might
supported
physically abused
have
or emo
affects
(E),
finding
on subsection
jury
based
not, however,
well-being of the
and termi
statute does
use
the terms
may
“neglect”
on emotional endan
nation
be based
and “abuse.”
Higgins
Although
opin
germent only.
(D), referring
Subsection
to “condi
*11
(E)
applicable
that subsection
is
ion states
surroundings,” requires
showing
tions or
parent’s
“physi
conduct causes
where the
placed
in an envi
the child has been
abuse,”
749,
544
at
cal or emotional
S.W.2d
ronment
dangerous
physical
to the child’s
Higgins
narrowly defines “con
case
Stuart,
mi
well-being.
or emotional
(E)
“aggressive
duct” under subsection
T.L.H.,
In the Interest of
280;
S.W.2d at
child,” “aggressive
con
toward
behavior
441,
(Tex.App. Corpus
630 S.W.2d
445-46
—
Id. at
duct,”
749,
750. The
and “abuse.”
1982,
dism’d). Thus,
Christi
writ
subsec
Higgins
not
rationale
does
account for
(D)
only
acceptability
tion
refers
to the
of
parent engaging in
possibility of the
Stuart,
conditions,
living
the child’s
677
endangers only the emo
“conduct” which
280; T.L.H.,
S.W.2d at
Molly
parent,
the first foster
tes-
Special issues numbers two and
care,
tified
while
the child hurt
“engaged
five ask whether each
by jumping up
himself
and down in the
knowingly placed
conduct or
baby
high
bed and
jumping out of
persons
engaged
who
in conduct” which
Zuniga,
chair.
a Child Welfare casework-
endangered the
emotion
er,
“energetic”
stated that the child was
added).
issues,
well-being (emphasis
al
“accident-prone.”
language,
statutory
which track the
thus,
disjunctive;
in the
framed
agree
overwhelming
We
support
parent’s
sufficient
either the
weight of the
evidence reflects that
or the
own conduct
conduct of others with
infections, bums, bruises,
child’s ear
parent knowingly placed
whom
scrapes,
upon
and cuts
not inflicted
were
support
is evidence
sufficient to
and were not
jury’s
Because we
affirmative answers.
result of
than Dr.
mistreatment. Other
have held that
sufficient evi
there was
Fong,
agreed
all the
these
witnesses
jury’s
dence in the record to
problems were not
result of mistreat
*15
engaged
findings
parent
each
in con
Georgette Speers,
ment.
a Child Welfare
physical or
duct which
the
caseworker,
“There is no evi
testified:
well-being
jury’s
emotional
the
the
of
dence of active
of the child. The
abuse”
findings
special
two and
on
issues numbers
tending
parents
to
the
evidence
show that
by
adequately supported
the evi
five are
not,
problems
did not cause these
is
how
and
Points of error numbers two
dence.
ever,
tending
the
evidence
to show
five are overruled.
parents appropriately cared for the
sought
injuries or
medical
professional
error,
points of
In
third and sixth
their
necessary.
treatment
for the child when
to
jury’s
attack the
answers
the
six which
issues numbers three and
special
the
jury
distinguish
could
between
it
in the child’s best
find that
would be
injuries and common ailments of childhood
rights of
parental
to terminate the
hand,
interest
to
parents’
on the one
failure
the
parents first contend
parent.
each
injuries
appropriately care
the child’s
erred,
of
a matter
court
as
other;
that the trial
after
occurred
the
several
on
law,
entering judgment
on these
based
pointed
distinction
witnesses also
out this
ability
“any lack of
findings because
[on
evidence
at trial. We conclude that
the
provide a desir-
parents] to
part of the
showing
not cause
the
the
did
due
degree of care
the
meet,
problems
child]
does
and there-
able
[for
these
education,
training,
opinion, detrimental
the child’s
parents’] lack of
our
to [the
well-being_
also contend
misfortune.” The
sup-
insufficient
there was
at 940. The court continued
525 S.W.2d
findings.
disagree.
port
We
these
however,
statement,
to conclude:
from this
adequate
of
love and affec-
lack
six
Special
“[B]ut
issues numbers three and
parent’s
may
by
tion
the
delib-
be evidenced
statutory language
of section 15.-
track
neglect
failing
provide
a reason-
02(2)
Family
erate
of the Texas
Code. The
of
ascertaining
able measure
care and comfort for
to be considered
factors
include,
child.”
The court affirmed the trial
of the child
Id.
best interest
terminating
judgment
to:
court’s
limited
(E).
rights pursuant
Id. at
to subsection
child; (B)
(A)
the emo-
the desires
939, 940.
physical
needs of the child
future; (C)
R.E.W.,
now and
the Houston
In In Matter
of
D_ F_
danger to the child now and
rephrased the
admonish
court
future; (D)
parental abilities of
in the
“However,
ment:
the harsh and irrevocable
custody; (E)
seeking
the individuals
justified
remedy
termination is not
of
indi-
to assist these
programs available
parent’s
evidence shows that a
where the
promote
of
the best interest
viduals
degree of
provide
a desirable
failure
child; (F)
plans
by
solely
child due
care and
for the
by
agency
individuals or
seek-
these
intelligence, training, or misfor
to lack of
(G)
ing custody;
stability of the home
R.E.W.,
the Matter
tune.”
In
(H)
proposed placement;
the acts or
added).
(emphasis
Na
S.W.2d at 582
See
may
indi-
omissions
(mother’s
varette,
аt 851
inabili
669 S.W.2d
existing parent-child
cate that the
rela-
due
ty
care for her children was “not
(I)
one;
tionship
proper
any
is not a
misfortune,
or dimin
solely
.illness
excuse for the acts or omissions
ability”).
mental
ished
parent.
outset,
that, al
At the
we note
(Tex.
Adams,
Holley
v.
appears to treat
though
parents’
brief
1976)(footnotes omitted).
note
We
such,
education, training, or
“lack of
case,
the trial court listed these factors
is not
affirmative defense
misfortune”
jury
in the
instructions.
which,
proved,
pled
if
properly
error,
point
third
their
tending
negate all evidence
to show
sup
is no evidence to
contend
there
is in the best interest of
port
findings
any lack of
Rather,
these
parents’
of edu
lack
care for the child
excused
desirable
one
cation, training,
and misfortune
education, training,
parents’
lack
by the
factors to be considered
several
misfortune, relying
determining
the Matter
whether termi
trier
fact
R.E.W.,
(Tex.Civ.App.—
here is the physical of the in which WHITHAM, HOWELL, safety well-being of the child BAKER and THOMAS, JJ., stable, join. provision permanent and the of a Clearly, protecting home for him. DEVANY, J., dissenting files a lives, promoting stability opinion HOWELL, in which McCLUNG lives, legitimate its citizens are concerns BAKER, JJ., join. government compelling and are in McCLUNG, Justice, dissenting. terests. agreeing While with the able dissent of Next, Devany, Justice because there several witnesses testified are addition- why majority al reasons opinion unless the child is erro- was removed from his neous, I home, explain file this dissent parents’ these “wouldn’t make reasons. Testimony it.” of this nature satisfied the requirement particulаrized showing that a It is well settled involuntary termi- protecting made that the life
be
and well-
parental
rights
nation of
involves funda-
being of
promoted by
the child would be
Santosky v.
rights.
mental constitutional
termination.
Kramer,
745, 753,
1388,
455 U.S.
102 S.Ct.
1394,
(1982);
Stanley
v.
L.Ed.2d 599
Finally,
impossible
it would be
Illinois,
645, 651,
1208,
405 U.S.
92 S.Ct.
promote
goals
providing
for the
G.M.,
1212,
(1972);
93
immediately
hospital
finding that
the child to the
15.02
a
ter
take
under section
and
gash
eye.
for
a
over
the child.
treatment of
his
is in the best interest of
mination
497,
Green,
499
v.
677 S.W.2d
Richardson
have
parents
These
five children. The
(Tex.1984); Wiley Spratley,
v.
543 S.W.2d
three
examined and found not
older
were
(Tex.1976).
require
349,
of
351
Both
these
These children are all
be malnourished.
by clear
convinc
proven
must
and
ments
be
day
provided by
in
and in
care
school
independently of each other.
ing evidence
Indeed,
pointed
by
as
out
Child Welfare.
Department
Human
Boyd v. Texas
Ser
majority,
of
for
Wel-
the
a social worker
Child
vices,
711,
(Tex.App.
712
S.W.2d
—Aus
the other children were
fare testified that
granted). The mere fact that
tin
writ
adequately
being
cared
requirements
proven
has
of these
been
one
day
meals
receiving
at
care. Child
were
by
can
is
which the State
no evidence
Dallas,
Way agency, offered
Care
a United
remaining
prove up the
re
inferentially
special programs
this child their
enroll
quirement.
at
Wiley,
S.W.2d
and sisters but Child Wel-
with his brothers
Cf.
713; Compasano
v.
Boyd,
S.W.2d
refused, opting
pursue
ter-
fare
instead
State,
(Tex.App.—
parents’
rights.
The
mination
the
1978, writ).
There is
Houston
Dist.]
child,
[1st
youngest
after the time that
born
a
strong presumption that
child’s best
home,
removed from the
this child was
maintaining
by
the
will
served
interest
be
adequately
is due to
also
nourished. This
G.M.,
parent-child relationship.
improved
condition
parents’
financial
at 847.
skills.
parenting
and
parents had not
jury
The
found that the
home,
this child
While
knowingly
knowingly
allowed the
placed
consisting primarily
dairy
was fed diet
to remain
conditions or surround-
as a dish called
products
cheese
as well
and
endangered
physical or emo-
ings which
rice, pastas,
“like
“sopas,” described as
Hоwever,
being
well
of the child.
This diet was said to
spices.”
baked with
parents had en-
jury
found that the
inadequate for the child
nutritionally
placed
gaged
knowingly
conduct
portions
inadequacy
both for the
engaged in
persons
who
vegetable
items. The
the lack of meat
or emotion-
milk, dairy and
getting free
were
being
al
of the
and also found
well
program.
from
“WIC”
products
cereal
that termination was in the best interest
the child’s diet consisted
Consequently,
products.
dairy
heavily of milk
form of assistance
insuffi-
I conclude that the evidence is
milk,
way
free
receiving in
of food was
support
either of the affirmative
cient
naturally follows
It
cheese and cereal.
Having
findings.
set out the relevant law
heavy milk and
diet was
that the child's
concerning involuntary termination cases
parents were not
products. As the
dairy
scope of re-
expanded
and mindful
vegetable prod-
receiving
meat and
free
required in such cases I shall now
view1
being fed
likewise,
ucts,
the child was
sufficiency
of the evidence
review
vegetables. The
meat
replete
diet
case.
so the
citizens
not American
were
get government
as-
family was unable
TERMINATION
INVOLUNTARY
benefits,
form of welfare
sistance
jury
before the
paid
by
stamps
medical care
food
parents en-
contention that the
the State’s
government.
the federal
endangered the
gaged in conduct which
portions was
meal
inadequacy of the
well-being of the
physical or emotional
family’s poverty. The lack
by
(1)
following
the child was
caused
child was the
meals was also
nutritionally
(2)
did
balanced
undernourished and
("An appeal of this
review,
therein.
expanded,
cases cited
scope
is not as
while
1. Our
Duran,
trial de
appellate
court
is heard
expansive
See
matter
as it could be.
State
record.”)
(1979)
upon
novo
204 Neb.
283 N.W.2d
by poverty
ignorance
caused
as well as the
ized
the United
Supreme
States
Court
proper proportion
in the
“essential,”
right”
“a basic civil
groups
food
to be fed to an infant of that
“far
precious
more
than property rights.”
age.
pediatrician
examined,
test-
Stanley,
See
placement;
the acts or omissions of the
caring
assist these
for this child
existing
may
indicate
in seeing
that he is fed and educated.
proper
not a
parent-child relationship is
help-
Child
had workers who were
Welfare
one;
(J) any
excuse for the acts or
ing
family with
of this
the care
Adams,
parent. Holley
omissions
Improvement
being
made. There was
(Tex.1976). Apply-
371-72
improvement
could not have
factors,
the Holley
ing
apparent
it is
that it
protect-
continued to made and the
has not
shown
clear and convinc-
been
having
ed
to terminate these
without
ing
in the
evidence that termination is
best
rights.
ents’
interest
the child. The child is too
Family
Certainly it is true that the
Code
young
express his
desires.
emotion-
require
does
the State to seek less
al and
needs of the child now and
filing
drastic
before
suit for
alternatives
by stay-
in the future would best be served
rights.
It
is no
termination of
possible.
natural
if
parents,
with his
right
has a
doubt
that Child Welfare
truе
The evidence shows that the
have
seeking
for termination without
suit
file
improve
parenting
worked hard
their
*23
anyone
as indeed
less drastic alternatives
adequately
skills
now
and can
more
care
against anyone else for what-
can file suit
child. The
I
he or she chooses.
vehe-
ever reason
danger
now
in the
to the child
future is
however,
parent’s
mently disagree,
that a
slight. There is no
that either
evidence
can be terminated
rights
without
show-
parent
physically
ever
abused the child.
are unavailable.
that less drastic means
There is
no
also
evidence that
as
recognizes
knowingly emotionally
The constitution
abused
funda
San-
integrity.
mental right
of
There is
no evidence that the
use
1394;
753,
at
tosky,
at
102 S.Ct.
drugs
of
455 U.S.
any
or intoxicants
kind. There
v. La
Board
Education
Cleveland
parent
pro-
that either
uses
of
632,
796,
Fleur,
640,
791,
fane,
obscene,
objectionable
414 U.S.
94 S.Ct.
language
at
(1974); Stanley,
States,
(D.C.Cir.1983);
showing
707 F.2d
603
duced
alternatives other than ter
(M.D.Ala.
Conn,
F.Supp. 769
protect
Roe v.
mination to
I
this child.
believe
1976); Alsager v. District Court
Polk
any interpretation
Family
Code
Iowa,
(S.D.
County,
F.Supp.
interpreting “best interest of the child” to
(8th
1975), affd,
this time the Code surely majority not would tention. But findings court’s cases be advocating parental and is not upon preponderance based a the evi- of chil- who have autistic rights parents of all generally dence rules applicable under children, dren, children with Now, course, hyperactive or con- civil cases. of clear and requires special handicap vincing any other required. majority evidence is The because the R.E.W., grasp cites its attention terminated but fails to be may ill-equipped likely ap- ditions not be handle these that would meet the ents proval majority. parents love of this These their child problems. much, they willingly so so that very much musings The observations of the Su- deportation in their risk of order increased preme of North re Court Dakota regain testimony their The at trial son. Kelber, (N.D. 51 N.D. N.W. 786 sharply one-half of the was divided 1924) especially appropriate seem to this stating that workers who testified social are case. These words even more neces- not It they recommend termination. sary today to read and understand than guardian ad significant to note that is when it written 1924: appointed protect the best interest litem parents may The blessed with be refused to recommend of the child also order, intelligence highest of the nor The social workers who did
termination. high degree of or cul- with a education did so recommend termination law, however, ture. makes no dis- parental ability”, “The had limited genius and the com- tinction between special “the “the child attention” needs man, ignorant, mon educated many with too overwhelmed uncouth, the rich and refined and equally reasons of other kids” and other poor, right in so far as the natural validity. These had questionable offspring custody is concerned. agen- there improvement and were made and hu- Every justice consideration of willing to so that assist them additional cies manity requires family ties shall It appar- made. is improvement could be The home and lightly be sundered ... period there a crisis that ent that together by the ties of family, held period at the within this occurred affection, natural, than adoptive, rather from was removed the home. this child institu- is the last bulwark American financial diffi- were severe lack or of Poverty, tions. of education unprepared a culty and were alone, justifi- are never sufficient culture “special needs” child. Since time severing bind the ties that cation for improve have worked hard to have together. western coun- families this fi- improved parenting their skills. Their many try, plains, these western on improved. also Con- nancial condition has where might have been broken home “fail- sequently, youngest their child not pio- large families were raised sod, ing other children are logs to thrive” and their or room cabins of neers in one education, doing is no indication that this or be- well. There lack or poverty, had children, if playing also do well he were grimed child would not faces earth, Any only show- rational exami- been the returned home. naked mother could lead to required. nation facts has not met their conclusion the State above, stated of reasons For the multitude showing by burden clear and onerous I dissent. 15.02(1)(E) convincing section evidence that HOWELL, WHITHAM, DEVANY, is in the met that termination has been THOMAS, JJ., join in BAKER and interest of the child. best opinion. Family purpose is not the Code It Justice, DEVANY, dissenting. just often a prescribe state how of this dissent. respectfully I scrubbed, exactly what child should be unk- passive, has held that majority slavishly adhered to and diet should may “conduct” nowing, neglect constitute that a child’s welfare no means follows rights un- to terminate sufficient always necessarily promoted by remov- Family 15.02(1)(E) Texas der section poverty hard ing him from home of instantly antiquat- has majority work, him Code. in another transplanting re- 15.02(1)(D)and its attendant ed section luxury Within the writ- home of and ease. neglect be committed quirement vigorous knowledge, generation er’s termi- justify in order to “knowingly” up con- grown under men and women have
101
another,
more fundamental
I
even
replaced it with
have
majority has
nation.
approach.
disagreement
majority’s
the
with
(E), which
all-encompassing subsection
an
parental
rights is a com-
Termination
In the
“knowingly” requirement.
has no
act,
final,
divesting
irrevocable
plete,
case
majority has overruled
process,
the
legal
parent and child of all
for all time a
coherently avoid-
this court which
law from
duties,
powers
rights, privileges,
requirements of subsec-
interpreting the
ed
right
the child’s
respect
each other save
(D)
oblivion.
into
tion
Wetzel, 715
v.
to inherit. Wetzel
S.W.2d
special
pertinent
jury answered
writ).
1986,
387,
(Tex.App.
no
391
—Dallas
issues as follows:
par
right existing between
The natural
convincing evi-
by clear and
you
Do
find
of constitutional
their children is
ents and
knowingly
parents]
dence that
[the
dimensions, and, therefore, involuntary ter
knowingly
the child ...
placed or
allowed
rights involves funda
mination of
surroundings
in conditions or
to remain
rights. Santosky v.
mental constitutional
endanger
physical or emotional
which
1388,
Kramer,
745,
71
102 S.Ct.
455 U.S.
We
well-being
the child?
Answer[:]
Illinois,
(1982); Stanley v.
405
L.Ed.2d
Do Not.
1208,
645,
guage of section an economic de when we faced with provide BAKER, McCLUNG,
pression and cannot ade HOWELL and children, quate food for under the JJ., join opinion. their in this holding, justi majority will be majority fied. The has enacted law rights poverty parental will be
a time majority will have the
terminated. The “big brother” form
state become can
government supremacy of such that it very freedom de
destroy the base of country by destroying in this
mocracy family. “Termination involves fundamen AMERICAN TEXAS BANK/WEST require that rights SIDE, Appellant, tal constitutional involuntary authorizing termi statutes strictly nation be favor construed Receiver, HAVEN, Appellee. G.O. Dearen, parent.” Clark v. (Tex.App. [1st Dist.] No. 2-87-003-CV. — Houston writ) original). (emphasis in Texas, Appeals of Court jury has unique Our case is Fort Worth. neglect in the obvious found no mala in se March 1987. in this undernourishment of upon the majority Yet the has seized case. 22, 1987. Rehearing April Denied underprivileged to not helplessness of the to forever away take their ma- rights. their To excuse the terminate by using the shortsightedness
jority its