in the Interest of S.B., R.B. and J.B., Children ( 1998 )

In the Interest of S.B., R.B. and J.B. Children

  IN THE

TENTH COURT OF APPEALS

No. 10-97-295-CV

     IN THE INTEREST OF S.B., R.B.

     AND J.B., CHILDREN,

From the 361st District Court

Brazos County, Texas

Trial Court # 7770-CV-361

O P I N I O N

      Appellee, the Texas Department of Protective and Regulatory Services (“DPRS”), filed suit to terminate the parental rights of appellants Debbie Bailey and Richard Bailey, Sr. (collectively referred to as “the Baileys”). DPRS alleges that the Baileys knowingly placed or knowingly allowed their children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children. See Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 1998). DPRS further alleges that Debbie has a mental deficiency which renders her unable to care for her children. Id. § 161.003 (Vernon 1996). The court found that the Baileys had engaged in the conduct alleged and that termination was in the best interest of the children. Id. § 161.001(2) (Vernon Supp. 1998). The court signed a decree terminating the Baileys’ parental rights.

      The first and second issues presented allege that there is insufficient evidence to show that Richard and Debbie knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children. Issue two further argues that because there was evidence that Debbie had a mental deficiency, she could not have engaged in the conduct knowingly.

      Issue three alleges that parental rights were terminated erroneously between a Walter Ray Robbins, who is not a party on appeal, and R.B. Debbie is the mother of S.B., R.B., and J.B. Richard is the father of R.B. and J.B. The court found that the biological father of S.B. is Walter Ray Robbins who was served by publication and did not appear at trial except through an appointed attorney. Although the termination decree correctly states that Robbins is the father of S.B., it erroneously terminates the parent-child relationship between Robbins and R.B.

      The Baileys and DPRS agree that the judgment should be reformed to show that the parent-child relationship is terminated between Robbins and S.B. Therefore, we modify the judgment to reflect that the parent-child relationship is terminated between Walter Ray Robbins and S.B. and delete the part which terminates the parent-child relationship between Robbins and R.B. See Tex. R. App. P. 43.2(b). Thus, we sustain the third issue presented.

SUFFICIENCY OF THE EVIDENCE

      The first and second issues presented for our review allege that the court’s finding of fact, specifically that the Baileys knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, is not supported by sufficient evidence.

      When we consider a legal sufficiency complaint, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Lucas v. Texas Dep’t of Protective & Regulatory Servs., 949 S.W.2d 500, 502 (Tex. App.—Waco 1997, writ denied). We uphold the verdict if we find any probative evidence supporting the contested issue. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989); Lucas, 949 S.W.2d at 502.

      DPRS had to prove its case at trial by clear and convincing evidence. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). We have recently adopted the intermediate standard of review of factual sufficiency issues where the trier of fact is required to make the finding by clear and convincing evidence. Spangler v. Texas Dep’t of Protective and Regulatory Servs., No. 10-97-210-CV, slip op. at 5, 1998 WL 41642, at 3* (Tex. App.—Waco Feb. 4, 1998, n. pet.). The review standard is whether, considering all of the evidence, the trier of fact could reasonably find the existence of a fact to be established by clear and convincing evidence. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985) (must consider and weigh all evidence in a factual sufficiency challenge); Spangler, slip op. at 5, 1998 WL 41642, at 3*. We apply the intermediate standard of review to factual sufficiency challenges only and not to legal sufficiency challenges. See Justice Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor Law. Rev. 391, 413 (1996).

      Ellen Contreras, a Child Protective Services (“CPS”) caseworker, testified that CPS began working regularly with the Baileys after R.B. was born in December of 1992 because he was premature and the hospital staff did not feel that the Baileys could adequately care for him. The Baileys had not completed an application for S.B. to receive Medicaid benefits for which he was qualified. Contreras said that she gave the Baileys a H.U.D. application to obtain suitable housing which they never filled out. CPS arranged and provided transportation to doctor appointments for S.B. and R.B., and if transportation was not provided, the appointments were often missed. Contreras testified that on one occasion she visited the home and S.B. was very congested and the side of his face was swollen. She had to transport him to the hospital.

      Contreras testified that the Baileys regularly ran out of diapers and lost medicine prescriptions. S.B. and R.B. required medication for hyperactivity and R.B. needed medication for asthma. Although Debbie received a social security check and Richard worked full-time at fast food restaurants, they were unable to sufficiently manage their income to provide adequate food, clothing, and shelter for the children. The Baileys moved frequently and would leave the children’s medicine, diapers, and formula behind. When questioned about the removal of S.B. and R.B., Contreras said that things seemed to be getting worse for the Baileys. CPS was often providing the children’s medications, formula and diapers. In May of 1993, CPS received a report that S.B. had fallen. When Contreras went to the home, S.B. was obviously in pain, but the Baileys had not sought medical attention. Contreras took him to the doctor and found that his arm was broken. The Baileys had no explanation as to how S.B. broke his arm. S.B. and R.B. were then removed from the home.

      Stephanie Keller became S.B.’s and R.B.’s caseworker in November of 1993. She testified that the Baileys moved sixteen times between November of 1993 and October of 1996. Keller was the CPS caseworker for the Baileys when J.B. was born in January of 1995. Keller said that the Bailey home contained numerous materials that were hazardous to an infant. J.B. was removed from the home in January of 1996 when a CPS worker went to the Baileys’ trailer and found J.B. very cold because there were no utility services and there were holes in the walls and the floor. Keller testified that the house was not appropriate for a child as there was no food, diapers, or furniture in J.B.’s room.

      Keller testified that during the entire time CPS was involved with the Baileys many other social service agencies also provided assistance to them. The county health department, the Texas Department of Health, and the Bryan Independent School District’s P.E.P.P. program each sent a person to the Baileys’ home once a week. According to Keller, the Baileys were unable to provide the basic needs for their children, and the children would be in danger if returned to the Baileys. Further, the children had special needs due to hyperactivity and asthma.

      Dr. Edwards, a psychologist, testified that Debbie is mentally deficient and has a mental age of a nine or ten year old. He stated that she is unable to make judgments, which presents a danger to her children. He testified that leaving the children with Debbie would place the children in conditions and surroundings which would endanger their emotional and physical well-being. Keller testified that Debbie was unable to clean the children, give them medicine, or get them to school. Debbie was incapable of learning how to use the breathing machine for R.B.’s asthma. Dr. Edwards stated that Richard would probably still not believe that leaving the children with Debbie was dangerous.

      Keller also testified that Richard believed that Debbie could take care of the children. She stated that Richard was incarcerated for long periods of time and she had observed him to be intoxicated during some of her visits. At the time of trial, Richard was incarcerated for two misdemeanors, theft and possession of marijuana. His parole had been revoked and he was being sent back to prison.

      Debra Williams, a teacher at the Texas Mental Health and Mental Retardation Department (“MHMR”), testified on behalf of Debbie. Williams taught Debbie parenting and money skills. She stated that Debbie had progressed in her parenting skills. According to Williams, Debbie was currently under case management at MHMR and a provider would soon be coming into the home once or twice a week to help her with household chores. Evonne Bailey, Richard’s sister, testified that she could check on Debbie and the children and make sure that they were healthy and went to their doctor appointments. She further testified that Debbie paid attention to the children. Richard testified that he did not knowingly leave the children in surroundings which endangered their physical or emotional well-being.

      Evidence that a parent has failed to seek appropriate medical treatment for a child will support a finding that the parent has knowingly endangered the child’s physical and emotional well-being. See In re S.H.A., 728 S.W.2d 73, 87 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). In S.H.A., as in this case, numerous social service agencies were actually providing most of the care for the children. DPRS presented evidence that Debbie failed to seek appropriate medical treatment for the children because of her mental deficiency. Thus, the evidence supported a finding that she has a mental deficiency which made her unable to care for her children. Richard left the children in Debbie’s care and continued to believe that Debbie could provide adequate care for their children. Thus, the evidence supports a finding that he knowingly allowed the children to remain in conditions and surroundings which endangered their emotional and physical well-being.

      Debbie argues that because the evidence shows that she is mentally deficient, she could not have knowingly left her children in conditions or surroundings which endangered their emotional or physical well-being. See Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 1998). Debbie’s parental rights can be terminated if the court finds that she is mentally deficient and unable to care for her children under section 161.003 of the Family Code. See Spurlock v. Texas Dep’t of Protective & Regulatory Servs., 904 S.W.2d 152, 155 (Tex. App.—Austin 1995, writ denied); Tex. Fam. Code Ann. § 161.003 (Vernon 1996). A finding on any one ground of termination and that termination is in the best interest of the child is sufficient to terminate parental rights. See Edwards v. Texas Dep’t of Protective and Regulatory Servs., 946 S.W.2d 130, 135 (Tex. App.—El Paso 1997, no writ). Therefore, Debbie’s rights can be terminated on the sole ground that she is unable to take care of her children because she is mentally deficient and a further finding under section 161.001(1)(D) is not required.

      For the reasons detailed above, we find probative evidence that Debbie has a mental deficiency which renders her unable to take care of her children and Richard knowingly placed or allowed their children to remain in conditions or surroundings which endangered their physical and emotional well-being. See Southern, 774 S.W.2d at 640. After considering all of the evidence, we find that the court reasonably found by clear and convincing evidence that Debbie has a mental deficiency which renders her unable to take care of her children and Richard knowingly placed or allowed their children to remain in conditions or surroundings which endangered their physical and emotional well-being. See Spangler, slip op. at 5, 1998 WL 41642, at 3*.

       Thus, we conclude that the evidence is legally and factually sufficient to support the decree of termination. We overrule the first and second issues presented and sustain the third issue. We modify the judgment to reflect that the parent-child relationship is terminated between Walter Ray Robbins and S.B. We affirm the judgment as modified.

                                                                               REX D. DAVIS 

                                                                               Chief Justice                                

Before Chief Justice Davis

       Justice Cummings and

       Justice Vance

Affirmed as modified

Opinion delivered and filed April 16, 1998

Do not publish

Vance, and

          Justice Richards (Sitting by Assignment)

Affirmed

Opinion delivered and filed January 30, 2002

Do not publish

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