      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00646-CV



                                  C. L. J. and T. P., Appellants

                                                 v.

                Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
        NO. 258,562-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING



                            MEMORANDUM OPINION


               C., the son of appellants C.L.J. and T.P., was born about four months premature

in April 2012. He weighed about one pound and was immediately placed in the neonatal intensive

care unit (NICU), where he remained for five months. In July 2012, while C. was still in the

hospital, the Texas Department of Family and Protective Services took conservatorship of C.

due to allegations of neglect by appellants. After several months, the Department’s goal changed

from reunification of the family to termination of appellants’ parental rights, and in August 2013,

a jury trial was held. The jury found that appellants had endangered C., that they had failed to

comply with the provisions of a court order setting out actions necessary for them to regain custody,

and that termination of appellants’ parental rights was in C.’s best interest. See Tex. Fam. Code

§ 161.001(1)(E), (O). On appeal, appellants attack the sufficiency of the evidence supporting both

grounds for termination and the finding that termination is in C.’s best interest. Because we agree
that the evidence in this record is insufficient to support the statutory grounds alleged for termination,

we reverse the trial court’s decree of termination and render judgment in favor of appellants.


                                         Standard of Review

                In a termination case, we ask whether the Department proved, by clear and convincing

evidence, that the parents engaged in conduct that amounts to statutory grounds for termination

pursuant to section 161.001 and that termination is in the child’s best interest. See id. § 161.001;

In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and convincing evidence is a heightened standard

of proof that requires “the measure or degree of proof that will produce in the mind of the trier of

fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.

Code § 101.007; see C.H., 89 S.W.3d at 25. We first view the evidence in the light most favorable

to the jury’s verdict, assuming that the jury resolved disputed facts in favor of its finding when

reasonable to do so, disregarding evidence when reasonable to do so, and considering undisputed

evidence that does not support the jury’s findings, and ask whether a reasonable trier of fact could

have formed a firm belief or conviction that the Department’s allegations were true. See In re J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). If the evidence is legally sufficient, we then view all of the evidence

in a neutral light, asking whether the jury could have reasonably formed a firm belief or conviction

that the Department’s allegations were true. See id. We defer to the jury’s credibility determinations

and reasonable resolution of factual disputes. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).




                                                    2
                                     Summary of the Evidence

                The Department alleged and the jury found two statutory grounds for termination—(1)

that appellants had engaged in conduct or knowingly placed C. with people who engaged in conduct

that endangered his physical or emotional well-being and (2) that appellants did not comply with the

provisions of a court order that established actions necessary for them to regain custody of C. The

jury heard the following1:


•       At the time C. was born, T.P. had already been involved with the Department through a case
        involving her two older children. In that case, which concluded within days of the Department
        taking conservatorship over C., T.P. was accused of having neglected her children, who were
        three and six, by allowing them to remain alone after school and into the evening while she
        worked. Her then-husband, the older children’s father, was stationed overseas at the time,
        and they were in the process of separating and seeking a divorce.2

•       C. was born on April 4, 2012, at twenty-eight weeks gestation. He suffered from numerous
        ailments due to his prematurity and remained in the NICU for five months following his
        birth. The Department sought conservatorship in late July 2012, based on concerns brought
        to the Department’s attention by Tiffany Hanff, a social worker at the NICU.3




        1
           Due to our determination related to statutory grounds, we need not summarize the evidence
that relates solely to the best interest determination. See Tex. R. App. P. 47.1 (appellate court opinions
should be as “brief as practicable”).
        2
         In that case, a Department caseworker testified that T.P. complied with “most” of the
services but did not: pay child support, although she bought items for the children; answer the
caseworker’s calls; follow all of the recommendations that resulted from her psychological
evaluation; or provide proof of employment, an address, or regular status updates. T.P. insisted that
she had complied with the orders and completed all the required services. That case concluded in
July 2012 with the children’s father being given primary conservatorship and T.P. being named a
joint managing conservator with visitation.
        3
         At the time C. was born and the Department began to seek custody, Hanff had been
employed as a social worker for the hospital for between one and one and one-half years. There was
no testimony or evidence provided about her experience, training, or professional credentials.

                                                    3
•      Hanff testified that she asks “all our families if there’s an open CPS case or any history,” and
       when she learns about an open case, she contacts the Department “to make sure that we were
       working along with CPS in helping to provide the family with support.” Thus, in appellants’
       case, when T.P. told Hanff about the case involving her older children, Hanff contacted the
       Department about C. sometime before May 1.

•      Hanff testified that in reviewing C.’s NICU visitor log in June 2012, she noticed that
       appellants “hadn’t been there for quite a while—for significant time.” She reported her
       concerns to the Department on June 19 and then called T.P. on June 20 to explain that NICU
       personnel “needed [appellants] to be here more”; “afterwards [appellants] did increase their
       visits,” usually visiting for “a little bit more than an hour at a time.” Hanff said that before
       her June 20 call, the frequency of appellants’ visitation “was concerning. Afterwards they
       did increase their visits . . . [a]nd it was not.” Hanff also testified that she called the
       Department after June 20 to tell them that appellants were visiting more but could not
       remember the Department’s “exact response.”

•      Hanff testified that the hospital did not have a “minimum standard for parents to visit” a
       premature infant in the NICU. When asked how often “most parents visit,” Hanff answered,
       “It's a hard one to really answer. It depends on situations. But for the most part I would say
       families visit on a pretty regular basis depending on what their situation is.” On the rare
       occasion that the hospital feels a family is not visiting enough, “We try to just get families
       to increase the time on their own before having to be more strict and actually giving them
       specific times to be there.”

•      Hanff testified about the NICU’s visitor log in general and said a family “should” sign in
       when visiting and that the hospital sometimes had to repeatedly ask families to comply
       with that request. When a mother is still a patient in the hospital following a child’s birth,
       however, she is not required to walk to the other end of the NICU to sign in and out, and the
       hospital “usually tr[ies] to have the father . . . go in and sign the family in and out.”

•      According to Department calculations, C.’s log indicated that T.P. visited C. for a total of
       slightly over thirty-two hours in the three months after he was born,4 including the week T.P.
       remained as a patient in the hospital following C.’s birth, and T.P. was asked whether she
       thought that was sufficient. She replied that, considering the requirements placed on her by
       the Department in the case involving her older children, “I think I did good that I saw him
       almost every day, whether it was 10 minutes or an hour or 45 minutes or a half an hour.”
       She said, “I was working 10 hours a day and so I visited whenever I could.” T.P. also said


       4
          Hanff testified that part of C.’s log was missing, and the log itself appears to show at
least one large gap, from mid-April until mid-May 2012. It appears that the Department’s calculation
of thirty-two hours is based on the incomplete log.

                                                  4
    that after her release from the hospital, she visited C. “almost every day” but was sometimes
    turned away or had her visits cut short because C. needed medical treatment.

•   Appellants both disputed the evidence that they did not visit C. frequently or for long periods
    of time. T.P. testified that she visited daily while she was in the hospital for a week after
    C.’s birth and that she did not have to sign in while she was a patient in the hospital. She
    also said the brief intervals between “time in” and “time out” were when she left “to get
    something to eat or just go outside and get some fresh air.” T.P. testified that when she asked
    about signing in or out when she had to leave for a meal or some air, “[T]hey said, ‘Just sign
    out on the time in slot. It’s no big deal.’” She also said that “[t]he people there made it like
    it was no big deal if we missed a sign-in, if we didn’t miss a sign-in. And, you know, who
    was to know that this would be brought up in court later on?”

•   T.P. said she did not know exactly what C.’s medical situation was because she had “been
    told so many different things from the Department and the actual doctors” and because C.
    was developing much faster and better than doctors had initially predicted. Asked whether
    he believed C. had cerebral palsy, C.L.J. answered, “I believe that you guys want me to
    believe that he is so sick that we won’t be able to take care of him. I believe that you guys
    want us to believe that he will never be able to be healthy.” Appellants said they would take
    C. to every doctor’s appointment and comply with treatment recommendations. According
    to C.’s foster mother and the Department’s caseworkers, at the time of trial, C. was “a
    little bit delayed” but had improved and developed well. C. regularly attended physical
    and occupational therapy and also had a speech therapist, developmental pediatrician,
    gastroenterologist, and pulmonologist. C. has been with foster families since his release
    from the hospital into the Department’s conservatorship.

•   At the time C. was born, appellants were planning to move to Austin and had begun the
    process of moving. After C.’s birth, they instead remained in Temple in temporary housing,
    taking temporary jobs so they could be near C. After C.’s release from the hospital into the
    Department’s custody, appellants moved to Austin as they had planned and took up
    employment here. They lived in a two-bedroom apartment for a while, but shortly before
    trial moved to a house in a better school district, and they had a crib, car seat, and other
    equipment to care for C. if he was returned to their care.

•   Dr. James Shinder did T.P.’s psychological evaluation in the case involving her older
    children and found she had a slightly elevated level of anxiety; was somewhat depressed,
    antisocial, and rebellious; and demonstrated “questionable problem-solving skills.”
    He acknowledged that some of her issues could be related to having her older children
    temporarily removed.

•   Dr. William Dubin performed psychological evaluations on appellants in this case. He said
    T.P. struggled with depression and stress and “was not honest and straightforward” in her

                                               5
        responses. Dubin thought T.P. had “low self-efficacy” in terms of child care and might lack
        the confidence or ability to parent properly. Dubin said C.L.J. was self-focused, had trouble
        with comprehension, and might have trouble acting to protect C.’s best interest.

•       Dr. Shinder testified that a premature baby needs significant physical contact in order to bond
        with his parents and that studies had indicated that increased physical contact, particularly
        with a familiar person, was tied to better recovery in premature infants. Dr. Dubin was
        concerned about whether C. had bonded with T.P. and C.L.J. and said there were indications
        that T.P. did not have a sense of emotional closeness to C. and might have trouble observing
        and understanding C.’s feelings.

•       Appellants were ordered to submit for weekly drug testing. They tested positive for marihuana
        use twice during the pendency of the case: once in early August 2012, about a week after the
        Department filed its first petition and before any temporary orders were in place, and once
        in November 2012, after “being told that the Department never planned on returning our
        son.” In the time frame between November 2012 and January 2013, appellants missed five
        or six tests and provided diluted samples for three or four tests, explaining that they were
        fasting and praying at the time. All the tests taken after January were negative.


                                              Discussion

                The Department alleged and the jury found two statutory grounds for termination.

First, the Department alleged that appellants had endangered C. by their own conduct or by leaving

him in the care of someone who endangered him. See Tex. Fam. Code § 161.001(1)(E). However,

the record lacks any evidence to support a finding of endangerment.

                A child is “endangered” if he is exposed to loss or injury of if his emotional or

physical health is jeopardized. A.S. v. Texas Dep’t of Family & Protective Servs., 394 S.W.3d 703,

711 (Tex. App.—El Paso 2012, no pet.). Endangerment requires more than the threat of a

“‘metaphysical injury or the possible ill effects of a less-than-ideal family environment,’” but “[i]t

is not necessary that the conduct be directed at the child or that the child suffers injury, or even that

the conduct constitutes a concrete threat of injury to the child.” Id. at 712 (quoting Texas Dep’t of


                                                   6
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Under subsection (E), our inquiry is

whether there is evidence that the endangerment of the child’s well-being was a direct result of the

parent’s conduct. Id. Termination under subsection 161.001(1)(E) requires “more than a single act

or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required.”

In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The Department need

not prove that the parent’s conduct was directed at the child or that the child actually suffered injury,

and we consider parental conduct both before and after the child’s birth. Id.

                This endangerment inquiry is unique because during the entire time in question,

C. was in the NICU of a reputable hospital, from the time he was born until his release into the

Department’s custody. There is no indication that any conduct by appellants caused C.’s premature

birth, and all of the evidence was that C. was well cared for while in the NICU and that his condition

improved during his time there. Nor was there evidence of some objective, reliable standard related

to NICU visitation that could lead a reasonable person to believe that appellants’ rate of visitation

before Hanff’s June 19 report to the Department endangered C. Even when we consider the testimony

about appellants’ marihuana use during this case or the fact that the Department was involved with

T.P. with respect to her older children (a case that closed within days of the Department seeking

conservatorship over C. with T.P. being granted joint managing conservatorship and visitation

rights5 ), the record does not support a finding by clear and convincing evidence that appellants

posed a risk of endangerment to C. either by their own conduct or by C.'s placement in the NICU




        5
          T.P.’s ex-husband testified on her behalf and said she was a “good mom” and that it would
not be in their children’s best interest to be kept away from their mother.

                                                   7
from the time of his birth until the Department filed its petition.. The evidence here is legally

insufficient to support termination based on endangerment. See A.S., 394 S.W.3d at 711-12.

                The other ground relied upon for termination of parental rights was that T.P. and

C.L.J. failed to comply with a court order that specifically established a series of actions necessary

to regain custody of C. after his removal “under Chapter 262 for the abuse or neglect of the child.”

Tex. Fam. Code § 161.001(1)(O). However, there is insufficient evidence to show that C. was

removed as a result of neglect.6 See id.

                Under chapter 262, the Department’s petition for removal must show a trial court that

there is “an immediate danger to the physical health or safety of the child or [that] the child has

been a victim of neglect or sexual abuse.” Id. § 262.101(1). The trial court may consider whether

a parent has “abused or neglected another child in a manner that caused serious injury to or the death

of the other child.” Id. § 262.102(b)(1). The supreme court has held that neglect may include the

risk of neglect, noting that “danger to the child’s physical health or safety” includes “‘exposure of

the child to loss or injury that jeopardizes the physical health or safety of the child without regard

to whether there has been an actual prior injury to the child.’” In re E.C.R., 402 S.W.3d 239, 246-47

(Tex. 2013) (quoting Tex. Fam. Code § 101.009).7 The Texas Supreme Court in E.C.R. concluded:

       6
        There is no evidence to show any abuse, thus neglect is the only possible ground on which
the Department can rely.
       7
        In In re E.C.R., the supreme court referred to section 261.001’s definition of neglect,
402 S.W.3d 239, 246 (Tex. 2013), which is as follows:

        (A) the leaving of a child in a situation where the child would be exposed to a substantial risk
of physical or mental harm, without arranging for necessary care for the child, and the demonstration
of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;


                                                   8
       So while subsection O requires removal under chapter 262 for abuse or neglect, those
       words are used broadly. Consistent with chapter 262’s removal standards, “abuse or
       neglect of the child” necessarily includes the risks or threats of the environment in
       which the child is placed. Part of that calculus includes the harm suffered or the
       danger faced by other children under the parent’s care. If a parent has neglected,
       sexually abused, or otherwise endangered her child’s physical health or safety, such
       that initial and continued removal are appropriate, the child has been “remov[ed]
       from the parent under Chapter 262 for the abuse or neglect of the child.”


Id. at 248 (quoting Tex. Fam. Code § 161.001(1)(O)). Thus, we are to consider “neglect” as used

in section 161.001(1)(O) in a broad sense, which may encompass the risk of future neglect, and ask


       (B) the following acts or omissions by a person:

           (i) placing a child in or failing to remove a child from a situation that a reasonable person
           would realize requires judgment or actions beyond the child’s level of maturity, physical
           condition, or mental abilities and that results in bodily injury or a substantial risk of
           immediate harm to the child;

           (ii) failing to seek, obtain, or follow through with medical care for a child, with the
           failure resulting in or presenting a substantial risk of death, disfigurement, or bodily
           injury or with the failure resulting in an observable and material impairment to the
           growth, development, or functioning of the child;

           (iii) the failure to provide a child with food, clothing, or shelter necessary to sustain the
           life or health of the child, excluding failure caused primarily by financial inability unless
           relief services had been offered and refused;

           (iv) placing a child in or failing to remove the child from a situation in which the child
           would be exposed to a substantial risk of sexual conduct harmful to the child; or

           (v) placing a child in or failing to remove the child from a situation in which the child
           would be exposed to acts or omissions that constitute abuse under Subdivision (1)(E),
           (F), (G), (H), or (K) committed against another child; or

        (C) the failure by the person responsible for a child’s care, custody, or welfare to permit the
child to return to the child’s home without arranging for the necessary care for the child after the
child has been absent from the home for any reason, including having been in residential placement
or having run away.

Tex. Fam. Code § 261.001(4).

                                                  9
whether a person of reasonable prudence could have found that C. faced an immediate danger to his

health or safety. See id.8 That a child was removed for abuse or neglect “is an element of subsection

161.001(1)(O),” and the Department bears the burden of establishing all elements of its case by

clear and convincing evidence. See In re J.S.G., No. 14-08-00754-CV, 2009 Tex. App. LEXIS 3224,

at *15-17 (Tex. App.—Houston [14th Dist.] May 7, 2009, no pet.) (mem. op.) (“we reject the

Department’s argument and conclude that ‘removal as a result of abuse or neglect’ is an element of

subsection 161.001(1)(O)”; courts must determine whether Department proved by clear and convincing

evidence that child was “removed under chapter 262 as a result of abuse or neglect”).

                C. was safely in the hospital from the time of his birth to the time the Department

took custody of him on July 26, 2012, and he was released directly into the Department’s care and

was never in appellants’ custody. The Department presented little evidence about its initial decision

to seek conservatorship—none of its investigators testified; its conservator caseworkers made only

vague reference to the investigation that led to C.’s removal; and the progress reports admitted into

evidence state only that the Department became involved due to Hanff’s June 19 report that “[T.P.]

has not been visiting the hospital,” that hospital staff “had to tell [T.P.] that she needed to visit her

son more, as she was only coming to the hospital for ten to fifteen minutes at a time,” and that

after that discussion, T.P. “started to visit for the minimum allowed time.” Hanff testified that she




        8
          In E.C.R., there was evidence of serious abuse and neglect of two older children, including
testimony that the mother had punched one child and dragged her by her hair, and that when the
mother was incarcerated, she left the subject child with an abusive boyfriend who had an extensive
criminal history. 402 S.W.3d at 248. Thus, the court concluded, a person of ordinary prudence
could have found that the child faced an immediate danger to his physical health or safety sufficient
to establish removal for abuse or neglect. Id.

                                                   10
informed the Department of her concerns on June 19, and that on June 20, one day later, she called

appellants to talk about the problem. Appellants then “definitely increased” their visits to a degree

that Hanff was no longer concerned.9 Hanff also testified that she informed the Department that

appellants had increased their visitation of C. and that the hospital did not have any definitive

minimum of visitation time or frequency required when a child was in the NICU.

               The Department was required to prove by clear and convincing evidence that C. was

removed from appellants’ care due to neglect, and that element is not supported by the evidence.

See id. We therefore hold that the Department did not establish the statutory grounds it relied upon

for terminating appellants’ parental rights. Having so held, we do not consider whether the evidence

also supported a finding that termination was in C.’s best interest.

               We pause to reiterate the well-known principle that parental rights are of constitutional

magnitude and “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-

59 (1982). In light of that important dictate, we have grave concerns that the Department appears

to have decided that the mere fact that appellants initially did not visit C. in the NICU with a

frequency satisfactory to the hospital social worker, Hanff, somehow rose to the level of neglect or

placing C. at risk of physical or emotional harm and to such a degree that it warranted the

Department seeking conservatorship before C. was ever released from the hospital, particularly

considering Hanff’s testimony that the parents increased the frequency of their visitation when a

concern was expressed. The Department presented scant evidence to the jury about why it removed


       9
          We note that appellants strongly disputed the accuracy of the NICU log and that at least
one month is missing, but even if those issues are disregarded, Hanff’s testimony on its own shows
that appellants increased their visitations to a point that the hospital no longer had concerns about
their adequacy.

                                                  11
C. from appellants’ conservatorship to begin with, but it appears that the Department rushed to

remove C. largely because of the case involving T.P.’s older children, a case that was closed just

days after the Department took custody of C., with the children being placed with their father and

T.P. being named joint managing conservator with visitation rights, and either purposefully ignored

appellants’ increased visitations or failed to investigate whether their visitations had increased.

               We acknowledge that an infant needs physical contact to thrive and bond with his

parents, but this is not a situation where the parents abandoned the child for any measurable amount

of time. This record is devoid of medical or scientific evidence about minimum or even suggested

visitation requirements, and Hanff acknowledged that the hospital did not have standards for parental

visits. Nor is there evidence that appellants’ conduct from C.’s birth until the Department’s decision

to seek conservatorship approached an objective standard of endangerment or neglect upon

which a reasonably prudent person could rely. All we have is Hanff’s apparently subjective concerns

about appellants’ level of parental contact during the first two and one-half months of C.’s life,

concerns that appellants alleviated by increasing their visits as soon as Hanff brought the issue to

their attention. Then, despite appellants changing their behavior to a point that Hanff no longer had

concerns, well before the Department even filed its petition, the Department concluded without

reference to discernable guiding standards not only that C. was somehow actively endangered or

neglected, but that he was endangered or neglected to such a degree that his removal from his

parents’ custody was warranted.


                                            Conclusion

               This record lacks evidence that appellants abused C. Further, the evidence is legally

insufficient to show that they endangered C. or that C. was properly removed as a result of parental

                                                 12
neglect. We reverse the trial court’s decree of termination and render judgment that the evidence

is insufficient to support the termination of appellants’ parental rights.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Reversed and Rendered

Filed: March 20, 2014




                                                  13
