I don’t usually report on termination cases because they are so sad, there are so many of them and the terminated parents almost never win on appeal (not making a value judgment here, just stating the facts). But in today’s case, the First District Court of Appeals reversed a trial court’s decision to terminate a mother’s parental rights. In re D.W., No. 01-13-00880-CV (Tex. App. – Houston [1st Dist.] Apr. 11, 2014) (mem. op.).
No Endangering Conduct
There are many, many grounds for termination of parental rights. Among them are engaging in a “conscious course of conduct that endangered the children’s physical or emotional well-being.” Tex. Fam. Code § 161.001(1)(E).
A Texas Department of Family and Protective Services (TDFPS) caseworker was the only witness at this trial. In one-word responses to leading questions, she stated that the home was filthy, that “there was domestic violence in the house,” that this conduct endangered the children and that the mother had tested positive for marijuana.
The court of appeals rejected this ground for termination, stating that “Unsupported, conclusory opinions of a witness do not constitute evidence of probative force and will not support a judgment.” Further, the mere use of marijuana does not show endangerment, and there was no evidence that the alleged conditions at the children’s home existed because of a “voluntary, deliberate and conscious” course of conduct on the part of the mother.
No Constructive Abandonment
A court may terminate a parent’s parental rights if the parent has constructively abandoned the child.* On direct, the caseworker testified that as of the date of trial, September 2013, the mother had not visited the children since March 2013. Yet on cross, the caseworker testified that the mother had not abandoned her children because the mother had been in contact with the caseworker all the way up to July 2013, was participating in services offered by TDFPS and had visited with the children. The court of appeals found that these contradictory statements did not meet the state’s burden of proof for termination, which is by clear and convincing evidence.
No Failure to Comply with Court Order
Parental rights also can be terminated when the parent fails to comply with a court order. Tex. Fam. Code § 161.001(1)(O). But TDFPS never introduced the order allegedly violated into evidence or otherwise made it a part of the record on appeal. The court of appeals held that termination cannot be upheld on this ground “where there is no court order that specifically establishes the actions necessary for the parent to obtain return of the child.”
Reversed and Rendered
For these reasons, the court of appeals reversed the trial court’s termination order. The only part of the order that the court of appeals left intact was TDFPS’ appointment as sole managing conservator over the children, which the mother had not challenged on appeal.
* According to Section 161.001(1)(N) of the Texas Family Code, a parent can be terminated if he or she
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and:
(i) the department or authorized agency has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment . . . .