In the Interest of S.Y., a Child

435 S.W.3d 923, 2014 WL 2922501, 2014 Tex. App. LEXIS 7034
Court of Appeals of Texas·Decided June 27, 2014·No. 05-14-00011-CV·Published·Cited by 11 cases

Opinion

OPINION

Opinion by

Justice LEWIS.

The mother of S.Y. (“Mother”) appeals the termination of her parental rights. Following a bench trial, the court found that (1) Mother had committed one statutory predicate act supporting termination, and (2) termination of Mother’s parental rights was in S.Y.’s best interest. On appeal, Mother challenges the legal and factual sufficiency of the evidence supporting both of those findings. For the reasons that follow, we affirm the judgment of the trial court.

Background

Mother, her husband (“Father”), and a teenaged cousin were detained and arrested on November 7, 2012, for shoplifting at a Walmart store. Security cameras showed them placing items in S.Y.’s stroller and then walking past the check-out area without paying. While they were being detained at the store, S.Y. needed a diaper change. A police officer accompanied Mother to change the diaper; the officer noticed S.Y. had “a really bad diaper rash.”

Police attempted to locate a relative who could take care of S.Y. — who was five months old at the time — while her parents were in police custody. When calling from Walmart was not successful, a police officer took S.Y. to the Department of Family and Protective Services (the “Department”). In a telephone conversation with a Department representative, S.Y.’s paternal grandmother offered to take S.Y., but the grandmother refused to allow someone from the Department to visit her home, a mandatory requirement for Department placement. Without a family member to act as caregiver, the Department took custody of S.Y. and placed her in foster care. Meanwhile, Mother pleaded guilty to theft and spent three days in jail.

Two days after the arrest, S.Y.’s foster mother took the baby for a physical examination. Dr. Joel Brandon Brock examined S.Y., and his report identified three conditions as “abnormal”: a skin rash on her torso, a diaper rash, and cradle cap. The examination form asks whether “the patient show[s] evidence of child abuse,” and Brock answered “Yes — > Neglect.” Brock described the torso rash as covering the lower part of S.Y.’s face, over her neck, in the fat rolls, and in the upper torso. He stated the rashes were “things that we typically see whenever food or feces or some other fluid is left on the body for too long and not cleaned off.” He testified the rash had turned into a “probable candida infection or yeast infection” in several *925 places. Brock believed S.Y. was in a state of medical neglect because:

[a]ny time that you have a child that is very easy to give basic care needs, just clean them off and make sure that food and feces are not left on them for an extended period of time — it takes time [for the rashes to get this bad] and it’s not easy for those kinds of rashes to occur.

At a hearing on November 19, 2012, the trial court signed temporary orders appointing the Department as Temporary Managing Conservator of S.Y. Mother and Father were both ordered to participate in a parenting class, a psychological evaluation, a psychiatric evaluation, DNA testing to determine parentage of S.Y., 1 and a drug/alcohol assessment. They were also ordered to follow through with all recommendations made by any service providers arranged by the Department. The Department then created a Family Service Plan, which had as its goal the reunification of the family within one year.

A little over a year later, however, the Department brought suit to terminate both parents’ rights to S.Y. based on three statutory grounds: family code sections 161.001(1)(D), 161.001(1)(E), and 161.001(1X0). Witnesses at trial described the efforts made by the Department and by both parents — how the parents had succeeded and where they had failed. 2 Mother’s counselors and caseworker testified that during the year between the arrest and trial, Mother completed her required parenting classes, counseling sessions, and therapy sessions. She did not undergo the required psychiatric evaluation or a drug test ordered by the Department the week before trial.

Testimony established Mother visited S.Y. regularly, and all reports of those visits indicated she and her daughter had a loving bond. Mother was not employed, but testified at trial that she had recently begun telling fortunes and she could do that to earn money if necessary. Overall, though, she depended upon Father to support the family, which included Father’s mother and sister. Father did automobile body repair work; he would approach people in parking lots and offer to fix their cars for less than the owners’ insurance deductible. He testified he earned enough to support his family in this way. Both parents experienced problems related to their limited formal education; over the course of the year, Mother’s caseworker learned Mother could not read or write. One recurring problem for both parents was the lack of official identification, which was necessary for most employment opportunities and for government assistance. By the time of trial, Father — but not Mother — had obtained identification. Mother and Father had moved to Texas from California in August 2012, some three months before the November arrest, and had lived in various motels since then. By the time of trial, they had leased an apartment.

However, on May 25, 2013, both Mother and Father were again arrested for theft. Mother again pleaded guilty; this time she spent a week in jail. Father’s multiple prior offenses resulted in an enhanced charge. He spent three months in jail and was serving a deferred three-year sen *926 tence at the time of trial. Their sentences — especially Father’s extended sentence — kept both parents from attending some sessions and visits with S.Y.

Moreover, Mother’s visits with S.Y. sometimes raised concerns. S.Y.’s caseworker, who generally supervised the parents’ visits, testified the parents were loving and engaged with S.Y. They brought the baby presents, including clothes and toys. However, at times it appeared they did not understand safety issues involved with her care. The parents allowed S.Y. to eat food that had been dropped on the floor and to put things in her mouth that could be harmful. They did not appear to understand fundamental notions of feeding S.Y.; the child had repeated choking incidents when her parents failed to cut her food into small enough bites and when they gave her access to an entire banana that S.Y. then shoved into her mouth. The foster parents learned S.Y. was allergic to citrus fruits. But despite being told that, Mother allowed S.Y. to sip on orange juice “because [S.Y.] reached for it.” Nor did Mother seem capable of making reasonable decisions concerning S.Y.’s future: when asked about her plans for S.Y.’s education, Mother replied that she thought she would home school her daughter.

S.Y.’s caseworker testified that the Family Service Plan required S.Y.’s parents to make “actual life changes.” She testified the baby’s condition when she came to the Department was not so bad that the parents could not have regained custody if they had made those life changes. But she testified their ability to parent S.Y. was the same before and after parenting classes. She opined it was in S.Y.’s best interest to terminate the parents’ rights.

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In the Interest of S.Y., a Child, 435 S.W.3d 923, 2014 WL 2922501, 2014 Tex. App. LEXIS 7034 (Tex. Ct. App. 2014).

435 S.W.3d 923 (In the Interest of S.Y., a Child) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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