In Re ACB

198 S.W.3d 294, 2006 WL 1373603
CourtCourt of Appeals of Texas
DecidedMay 19, 2006
Docket07-05-0230-CV
StatusPublished

This text of 198 S.W.3d 294 (In Re ACB) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re ACB, 198 S.W.3d 294, 2006 WL 1373603 (Tex. Ct. App. 2006).

Opinion

198 S.W.3d 294 (2006)

In the Interest of A.C. B., O.B.B., O.C.B. and O.D.B., Children.

No. 07-05-0230-CV.

Court of Appeals of Texas, Amarillo.

May 19, 2006.

*296 Lynda Smith, Amarillo, for appellant.

Jami Kay Watson, Canyon, for appellee.

William E. Kelly, II, Canyon, for intervenor.

Catherine E. Brown Dodson, Amarillo, for ad litem.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

Tamara Bailey challenges a final order terminating her parental rights to each of her four children. Citing her compliance with the service plan established by the Department of Family and Protective Services, she challenges the sufficiency of the evidence supporting the trial court's order. We affirm.

The four children of Tamara and Owen Chad Bailey[1] were born between early 1999 and the summer of 2002. The oldest is their daughter, A.C.B. The other three children are their sons, O.B.B., O.C.B., and O.D.B. A caseworker from the Department of Family and Protective Services investigating a complaint of neglect in January 2003 found the Baileys' home to be unsanitary and unsafe for the children. The Baileys and the Department agreed on a plan that provided the children would stay with Tamara's mother who lived nearby while they cleaned the house to make it safe for the children. Tamara also completed a parenting class. The Department closed the case without taking further action.

The Department received a second report of neglect in October 2003. A caseworker found conditions in the house had not improved at all. The floor was covered in trash including dirty diapers, feces was smeared on some walls, dirty dishes and old food were throughout the house and the bathtub was unuseable. The children who attended school were often dirty, and smelled of urine. The children were again sent to stay with their grandmother while the house was cleaned. The children were removed in December 2003 after caseworker Katie Klaehn visited and found many of the same conditions persisted. The children were placed with a foster mother temporarily.

The Department shortly filed pleadings, supported by the affidavit of Klaehn setting out the circumstances prompting removal of the children. The petition sought relief that included termination of the parental rights of both parents. As grounds for termination the petition alleged the parents knowingly placed or allowed the children to remain in conditions which endangered their physical or emotional well-being and engaged in conduct which endangered their physical or emotional well-being. See Tex. Fam.Code Ann. § 161.001(1)(D), (E) (Vernon Supp.2005).

On December 15, 2003, the trial court signed an agreed temporary order naming the Department temporary managing conservator and imposing several conditions on the parents. The conditions required the parents to undergo psychological and psychiatric evaluations, participate in counseling, complete parenting classes, participate in marriage counseling, and participate in the "Fly routine" designed to maintain safe and sanitary conditions in their home. The temporary order also required the parents to comply with the original or any amended service plan established by the Department. The Baileys signed the original service plan on December *297 18, 2003. See Tex. Fam.Code Ann. § 263.103 (Vernon 2002).

During a January 2004 visit, caseworker Klaehn found the house was still in very poor condition and the utilities had been disconnected. In February caseworker Amy Hogan found improvement in the house but determined there were still significant problems, including a general lack of cleanliness. By the summer of 2004, the third caseworker, Pam Pollard, found significant improvement in the condition of the home, but was not satisfied it had become a safe environment for the children. During this time Tamara completed a parenting class and participated in some counseling. An amended service plan signed by the Baileys August 3, 2004 stated the long-range goal as family reunification by December 2004. A third plan, dated August 11, 2004, not signed by the Baileys, listed the long-range goal as "unrelated, adoption." In September 2004 Chad committed suicide.

A fourth caseworker was assigned and the trial court conducted the third permanency hearing in the case in November 2004. The order from that hearing recited the court's finding that Tamara had "not demonstrated adequate and appropriate compliance with the service plan." The foster mother with whom the children had been placed intervened in the suit in February 2005 seeking appointment as sole managing conservator.

The case was tried to the bench over four days in May and June 2005. Witnesses included Department caseworkers, counselors and medical experts, Tamara Bailey, her sister-in-law and mother-in-law. The trial court ordered Tamara's parental rights terminated, finding the Department established by clear and convincing evidence both grounds alleged in the petition and that termination was in the best interest of the children. The order named the Department permanent managing conservator of each child.

Tamara's single appellate issue challenges the factual sufficiency of the evidence supporting termination. The substance of her argument is that the trial court erred by terminating her parental rights based on the facts and circumstances existing at the time the children were removed rather than those obtained at the time of trial. She does not contend the evidence of conditions in December 2003 was insufficient to support termination. Citing only Family Code section 263.101, Tamara argues the Family Code allows her a reasonable period to provide a safe environment for the children. She further argues, without citation to supporting authority, that her success in complying with the service plan is critical to the decision to terminate her parental rights. A substantial part of the trial was devoted to evidence seeking to establish Tamara's compliance or non-compliance with specific elements of the service plan.

Section 161.001 authorizes termination of parental rights on proof of two elements by clear and convincing evidence; first, that the parent committed any of the enumerated acts or omissions, and second, that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon Supp.2005); In re S.A.P., 169 S.W.3d 685, 695 (Tex.App.-Waco 2005, no pet.); In re S.M.L.D., 150 S.W.3d 754, 756 (Tex.App.-Amarillo 2004, no pet.). Nothing in the language of Chapter 161 imposes on the Department a burden to establish non-compliance with a service plan under Chapter 263[2] or suggests that compliance *298 with a service plan prevents an affirmative finding on either element.

Case law indicates a parent's compliance with a service plan does not preclude a finding that termination is in the child's best interest. In In re M.G.D.,

Related

Holley v. Adams
544 S.W.2d 367 (Texas Supreme Court, 1976)
Wiley v. Spratlan
543 S.W.2d 349 (Texas Supreme Court, 1976)
in the Interest of W.C., K.A.C., L.C.D., D.J.D., and S.T.D.
98 S.W.3d 753 (Court of Appeals of Texas, 2003)
In the Interest of S.M.L.D., a Child
150 S.W.3d 754 (Court of Appeals of Texas, 2004)
in the Interest of A.C.B., O.B.B., O.C.B. and O.D.B., Children
198 S.W.3d 294 (Court of Appeals of Texas, 2006)
in the Interest of S.T., O.T.H., G.T.H. and M.L.T.
127 S.W.3d 371 (Court of Appeals of Texas, 2004)
in the Interest of M.G.D. and B.L.D
108 S.W.3d 508 (Court of Appeals of Texas, 2003)
In the Interest of K.C.M.
4 S.W.3d 392 (Court of Appeals of Texas, 1999)
In the interest of C.H.
89 S.W.3d 17 (Texas Supreme Court, 2002)
In the Interest of S.A.W.
131 S.W.3d 704 (Court of Appeals of Texas, 2004)
In the Interest of S.A.P.
169 S.W.3d 685 (Court of Appeals of Texas, 2005)

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Bluebook (online)
198 S.W.3d 294, 2006 WL 1373603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acb-texapp-2006.