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ANALYSIS
Abusive or dangerous conduct may result
in termination of parental rights
Elisa Reiter and Daniel Pollack | June 29, 2023
A parent's rights can be terminated if they are not able to properly care for their
child. The Eighth District Court of Appeals in El Paso recently dealt with this issue
in In the Int. of R.A.B., 2023 Tex. App. The appellate court held that the
termination of a mother’s parental rights was appropriate based on Tex. Fam. Code
Ann. Section 161.001(b)(1)(D) and (E), and based on a finding of child
endangerment. As such, severing the parent-child relationship was in the children’s
best interest. Why?
In R.A.B., the mother and her partner were observed at a known drug house. In
addition, the mother’s partner was also seen blowing into the children’s faces.
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Following that incident, the children tested positive for amphetamine and
methamphetamine. One might presume that the mother had learned her lesson, and
would abstain from drug use during the pendency of the ensuing C.P.S. case.
Unfortunately, the mother endangered the children’s lives prior to their removal,
and continued engaging in the use of illicit drugs following their removal, during
the pendency of the case. The mother’s drug use was reflected by her refusal to
comply with a court order mandating random drug testing. In addition, in regard to
the testing that the mother did engage in, she tested positive for methamphetamine
and amphetamine on several occasions, spread over the 18-month pendency of the
case. Additionally, the parenting plan required her to attend in-patient drug
rehabilitation, which she refused to do.
The Texas Department of Family and Protective Services (TDFPS) filed its case on
June 4, 2021; a bench trial was held in November, 2022. At the time of trial,
R.A.B., Jr. was 13 years-old and M.M.G.-B., was 12 years-old. Amphetamines and
methamphetamines are narcotics, categorized as group 1 penalty drugs. TEX.
HEALTH & SAFETY CODE ANN. Section 481.102. The mother’s in-person
visits were suspended pending submission of a clean drug test. TDFPS was
appointed as temporary sole managing conservator of the children. The trial court
found that mother “partially complied with random drug testing but failed to
demonstrate sobriety.” In October, 2021, approximately four months after initial
drug testing, the mother did submit to a hair follicle drug test, and her results were
positive for amphetamines and methamphetamines. In December, 2021, claiming
an inability to get herself to the drug testing facility, the mother failed to submit to
a urinalysis. She also missed an additional drug test in February, 2022. In March,
2022, the mother submitted to a hair follicle drug test, and again tested positive for
amphetamines and methamphetamines. In June 2022, her urine drug test results
were again positive for amphetamines and methamphetamines.
In July, 2022, the trial court ordered the mother to present herself for in-patient
drug rehabilitation. The mother claimed she was unable to attend the program due
to her obligations to her own ailing, elderly mother.
In October, 2022, after the Respondent Mother submitted to another urinalysis, she
again tested positive for amphetamines and methamphetamines. At trial, the
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TDPFS (the “Department”) social worker, Melin Hernandez, testified that the
mother denied having a drug dependency issue throughout the case. While the
mother was prohibited from having in-person visits with the children, the mother
had virtual visits with the children. Note the dates involved – the case was filed
during the COVID pandemic, and was subject to emergency orders issued by the
Texas Supreme Court. According to Hernandez, the virtual visitations appeared to
have a positive impact on the children.
The mother and father lived in separate households. Hernandez testified that the
father had limited contact with the children prior to their removal. While the father
was not involved in the initial case, in November 2021, he was arrested and
remained incarcerated for several months pending placement in a drug
rehabilitation program. He was released from jail in August 2022, having
completed his rehabilitation program. Hernandez testified that the father’s
interaction with the children was positive, albeit inconsistent. Hernandez also
testified that the father wanted what was best for the children, and that the father
acknowledged he could not provide for his children.
Hernandez also acknowledged that R.A.B., Jr. was living in an emergency shelter,
and that the Department planned for him to be placed for adoption in the event the
Department was named permanent managing conservator. R.A.B., Jr. did not want
to be adopted, and made his opposition to adoption clear to Hernandez. By
contrast, M.M.G.-B. was living in a foster home. The department planned for
M.M.G.-B to remain in that foster home, and that the Department planned for the
child’s foster parents to adopt her.
The trial court also heard testimony from Corine Dominguez, a licensed chemical
dependency counselor who treated J.G. via an outpatient program. J.G. began work
in the outpatient program on October 12, 2021, with ten to twelve individual
sessions required. J.G. was also encouraged to attend group sessions, but she failed
to do so. She was discharged from the program on February 23, 2022. Dominguez
confirmed that the outpatient program did not perform any drug testing. However,
J.G. self-reported that she had been sober for eight months at the time of her
discharge. A CASA volunteer assigned to the case less than one month prior to
trial met with the children and indicated that she had enough information to
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formulate an opinion. The CASA volunteer testified at trial that termination of
parental rights was in the children’s best interests.
The mother testified at trial that her visits with the children had been twice per
week, and further, that she had exchanged messages with her daughter via social
media. J.G. testified that she wanted the family reunified. J.G. did not feel that
termination of her parental rights would serve her children’s best interests.
Danielle Fisher was R.A.B., Jr.’s psychiatric nurse practitioner. R.A.B., Jr. was on
prescription medication, including a stimulant for his attention deficit
disorder. Ms. Fisher opined that “there is always a concern” if a child was
prescribed a stimulant while living with a person known to engage in drug use.
R.A.B., Jr. was also on a mood stabilizer, to curb aggressive behavior. Fisher
testified that while she planned to wean R.A.B., Jr. off the prescription medication,
he would need substantial therapy first to help him regulate his behaviors. Two
other counselors also testified, one opining that R.A.B., Jr. needed counseling for
“self-awareness, coping skills, and self-processing of his experiences, thoughts,
and emotions.” The other counselor opined regarding the lack of an emotional
connection between M.M.G.-B. and J.G.
Six issues were raised on appeal. Due process necessitates sufficiency of findings
by the trial court. Tex.Fam. Code Section 161.001(b)(1) provides that a trial court
may order that a person’s parent child relationship may be terminated if the trial
court finds by clear and convincing evidence that the parent has committed one or
more of the acts set out by the statute, and that termination of the parent-child
relationship is in the child’s best interest. The fact finder must have sufficient proof
to form a firm belief as to the truth of the allegations forming the basis of the case.
On appeal, the mother argued that there were insufficient grounds to substantiate a
claim for child endangerment pursuant to subsections (D) and (E). The appellate
court notes that “endangerment means more than a threat of a metaphysical injury
or the possible ill effects of an unideal family environment. . .” but the parent’s
conduct need not be “directed at the child” nor “that the child suffer actual injury.”
The appellate court holds that “a parent’s use of illegal drugs and the effect on her
life and parenting ability may establish an endangering course of action under
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subsection (E). Citing In re K.A.C., 594, S.W.3d at 373, the appellate court notes
“[f]urther, evidence that the parent continued to use illegal drugs even though the
parent knew her parental rights were in jeopardy is conduct showing a voluntary,
deliberate, and conscious course of conduct, which by its nature, endangers a
child’s well-being.” In the instant case, the mother not only continued to engage in
drug use, her children had tested positive for drugs at the time of their
removal. The appellate court notes that the mother argues that the drug test results
were suspect and invalid. Yet, the drug tests were admitted at the trial court
level. No objections were made at trial as to the admission of the drug tests – the
only concern noted was as to a typographical error in the October, 2022 drug test
results. As the mother failed to object at trial, she waived any objections as to the
drug test results on appeal.
The appellate court views the evidence in a manner acknowledging the trial court’s
position as factfinder, gatekeeper and “sole arbiter of the witnesses’ credibility and
demeanor,” finding that “J.G. knowingly placed the children in an environment
that endangered their physical and emotional well-being.” Given the fact that the
appellate court found legally sufficient evidence to support termination of parental
rights under Subsections (D) and (E), there was no need to address the sufficiency
of evidence under subsections (O) and (P).
Abuse and neglect have broad meanings under the Texas Family Code. Pursuant to
Chapter 262, the child’s environment can be interpreted to pose the risk of abuse or
neglect. At trial, J.G.’s testimony as to her ailing mother failed to constitute a
sufficient explanation for her failure to complete the parenting plan, or why she
continued to test positive for illegal drugs. J.G. failed to prove by a preponderance
of the evidence that she was unable to comply with the parenting plan/court order.
Nor did the mother show that she made a good faith effort to comply with court
orders, and that her failure to comply was not due to her own acts or omissions. In
any event, such a defense cannot be lodged for the first time on appeal.
In its analysis of the facts of the instant case, the appellate court considers the
Holley v. Adams factors, including:
A. The desires of the child;
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B. The emotional and physical needs of the child now and in the future;
C. The emotional and physical danger to the child now and in the future;
D. The parental abilities of the individuals seeking custody;
E. The program’s available to assist these individuals to promote the best
interests of the child;
F. The plans for the child by these individuals or by the agency seeking
custody;
G. The stability of the home or proposed placement;
H. The acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and
I. Any excuse for the acts or omissions of the parent.
As both children, at some level, expressed a desire to interact with their mother in
the future, the appellate court weighed the children’s expressed desire against their
best interests, concluding that the trial court had sufficient evidence to conclude
that the children’s mother would “continue to endanger the well-being of the
children.” Moreover, while the mother argued at trial that the Department’s actions
reflected poor parenting ability as evidenced by R.A.B., Jr.’s weight loss (30
pounds in one year), and her failure to proffer any explanation as to the child’s
weight prior to his removal. Moreover, evidence reflected that the child’s
caregivers had been instructed to provide J.G. 's son with double portions of food
and to supplement his diet with multivitamins.
Considering the programs available to assist J.G., while she had been ordered to
participate in in-patient drug rehabilitation, the mother had not complied with
certain court orders. Moreover, she failed to demonstrate and to maintain sobriety
during the pendency of the underlying case. J.G. also failed to present testimony at
trial as to her plans for the children other than her desire to have them returned to
her home.
Here are some important takeaways:
1. Objections need to be timely raised at trial.
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2. If one is to challenge positive drug results, simply providing testimony from
the parent who was the subject of the test results is insufficient. Find an
expert who can opine as to why certain test results may be invalid.
3. If outpatient treatment is sought by a parent who presents with the
appearance of being a drug addict, assure that some type of drug testing is
part of the treatment protocol.
4. If drug testing is not part of outpatient drug rehabilitation, assure that the
parent presents for independent drug testing.
5. As an ad litem, assure that the child is not being exposed to physical or
emotional danger if and when the child is being made available for virtual
and/or in-person visits with a parent.
6. As a parent’s ad litem, assure that your attempts to apprise the parent as to
how the parent’s acts or omissions may impact their case are well
documented.
Elisa Reiter is Board Certified in Family Law and in Child Welfare Law by the
Texas Board of Legal Specialization. She is a Senior Attorney with Underwood
Perkins, P.C. in Dallas, Texas. She is also admitted to practice in the District of
Columbia, Massachusetts, and New York. Contact: ereiter@uplawtx.com.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of Social
Work in New York City. He was also a Commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon commission
created to examine the institutional responses to sexual grooming and abuse by
former USA Gymnastics physician Larry Nassar. Contact: dpollack@yu.edu.
Original link: https://www.law.com/texaslawyer/2023/06/30/abusive-or-
dangerous-conduct-may-result-in-termination-of-parental-rights/