In re Interest of J.W.

• Decision Date: 27 May 2022
• Docket Number: 19-1069
• Citation: 645 S.W.3d 726
• Parties: In the INTEREST OF J.W., a Child
• Court: Texas Supreme Court

645 S.W.3d 726

In the INTEREST OF J.W., a Child

No. 19-1069

Supreme Court of Texas.

Argued September 15, 2021

OPINION DELIVERED: May 27, 2022

Kathleen P. Cline, Comfort, for Other interested party W., J.

Amanda Buenger, Karen Jean Langsley, for Petitioner W., G. T.

Karlene Dunn Poll, Raymond Louis Thomas, McAllen, Lisa B. Hobbs, Austin, for Petitioner W., J.

Tiffany Lauren Roper, Jarvis J. Parsons, Eric Scott Houghton, Mark T. Zuniga, Michael R. Abrams, Eric T. Tai, Audrey Celeste Carmical, Anna Maria Ford, for Respondent.

Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Bland, Justice Huddle, and Justice Young joined.

In this difficult parental-termination case, we examine the legal sufficiency of the evidence to support the jury's finding, by clear and convincing evidence, that Father's parental rights to his child should be terminated. After a thorough review of the record, we hold that the jury reasonably could have formed a firm belief or conviction that (1) one statutory predicate ground for termination was met and (2) termination was in the child's best interest. However, we also hold that another statutory ground was improperly submitted to the jury as part of a broad-form termination question. Because we cannot discern whether the jury terminated Father's rights on an invalid ground, and because he preserved the charge error, we reverse the court of appeals’ judgment as to Father and remand for a new trial.

I. Background

Mother and Father were married in February 2016. Mother had two children, "Jason" and "Doug." Her parental rights to her younger son, Doug, had been terminated in 2011 on the grounds that she (1) "knowingly placed or knowingly allowed [him] to remain in conditions or surroundings which endanger [his] physical or emotional well-being" and (2) "engaged in conduct or knowingly placed [him] with persons who engaged in conduct which endangers [his] physical or emotional well-being." TEX. FAM. CODE § 161.001(b)(1)(D), (E). Both children live with Jason's biological father, and Mother visits them often.

According to Kelly Allen, a supervisor with the Department of Family and Protective Services who participated in the investigation involving Doug, the case was opened because of concerns that Mother was using drugs and was not meeting Doug's medical needs. Allen testified that Doug, who has a medical condition involving deterioration of the muscles in his legs, was almost seven years old at the time of the investigation, had never been enrolled in school, could not read or write, and had not been provided the walker, wheelchair, therapy, or pain medication he needed. She was particularly concerned that Mother had filled her own prescription "for an opiate" but had not obtained Doug's medication.

Allen also described two incidents in which Mother "absconded" with the children. Early in the investigation involving Doug, when Mother was informed that the Department would be removing him from her care, Mother left the Department's office with him and disappeared for over a week until law enforcement located them. She ultimately pleaded guilty to interference with an investigation, a misdemeanor offense, and was sentenced to 100 days in county jail. During a different Department investigation concerning Jason, law enforcement was called to locate him and Mother after she took him from the home of his biological father.

Mother learned that she was pregnant with J.W. in July 2016, five months after she and Father were married.¹ At the time, Mother worked for Sanderson Farms, a poultry-processing company, and had developed work-related respiratory issues for which she was taking Promethazine

, a prescription medication that can contain codeine, an opiate. According to Father, Mother told him that she was concerned she had developed an opiate addiction that needed to be addressed in light of the pregnancy. They were referred to a facility in Florida where Mother could undergo a detox regimen, with inpatient treatment to follow. Mother entered the facility shortly before Thanksgiving and completed the five-day detox program. However, she refused any further treatment and instead returned to Texas. Father testified that she left the facility because it had confiscated her Promethazine and "wouldn't let her take" it.

When Mother returned from Florida, Father started working on a large project in Houston and was away from Mother for "most of ... January and into February." Later in her pregnancy, Mother began treatment at a methadone

clinic associated with a substance-abuse treatment center in Houston. Mother does not drive, and Father drove her from College Station to the clinic each day for two or three weeks. Mother reportedly planned to enter the affiliated treatment center, but she never enrolled and gave birth to J.W. unexpectedly at home on April 24, 2017.

Mother and J.W. were immediately transported by ambulance to the hospital, where J.W. was treated for respiratory distress caused by aspirating meconium into his lungs. In evaluating the cause of J.W.’s respiratory distress, the hospital conducted drug tests on both J.W. and Mother; Mother's urine tested positive for opiates and amphetamines

, and J.W.’s tested positive for opiates. A sample of J.W.’s meconium collected on April 25 tested positive for opiates, amphetamines, benzodiazepine, barbiturates, and methadone. Dr. Khaled Hilal, J.W.’s treating neonatologist, testified that the benzodiazepine and barbiturates could be explained by medications the hospital had administered when J.W. was admitted. The source of the amphetamines was never identified, but Dr. Hilal agreed that some prescription medications can cause a positive test, although the codeine that likely caused the positive opiate test would not have caused the positive result for amphetamines. In light of the positive drug tests, the hospital referred the case to the Department.

On April 28, J.W. began showing signs of withdrawal; Dr. Hilal described J.W. as inconsolable, jittery, sweating, hypertonic, not sleeping, and experiencing poor weight gain and loose stool. The hospital began administering morphine

on April 30 to treat his symptoms and weaned him off the medication over a ten-day period. The hospital also adjusted his formula to counteract his poor weight gain.

In the meantime, Department investigator Madison Gresset received the referral on April 25 and conducted an initial investigation. When the results of the meconium drug screen came back on May 1, a hospital social worker told Gresset that one of the substances for which J.W. tested positive was methamphetamine, an illegal street drug, but the parties agree that this was a mistake and that neither Mother nor J.W. has ever tested positive for that drug. When Gresset spoke to Father about the test results, he reported that he did not know Mother had used any substances and had no knowledge of how they could have entered her system. He described Mother as a "free spirit ... coming and going as she pleased" from their home. Gresset attempted to speak to Mother about the results the same day but was unable to locate her at the hospital. The following day, the Department was informed that Mother and Father had an attorney.

On May 17, two days before J.W. was discharged from the hospital, the Department filed for emergency removal and sought temporary managing conservatorship of J.W.,² which the trial court granted. The Department had considered placing J.W. with Father rather than seeking removal, but Father expressed that he was not sure he could act as an independent caregiver for J.W. at that time. Gresset was also troubled by Father's denial of knowledge about Mother's substance use and was concerned that he was missing warning signs and justifying her behavior.

The Department considered and ultimately ruled out several other possible placements suggested by J.W.’s parents. Father's two brothers and a family friend informed the Department that they supported Father but did not want to be considered as placements for J.W. The Department ruled out the household of Cecilia and Cecilio Salas, the mother and brother of Mother's former fiancé who had passed away, because of concerns about a suspected romantic relationship between Mother and Mr. Salas and its effect on the family's ability to be objective about Mother and protective of J.W. Mother and Mr. Salas denied such a relationship, though according to a conservatorship caseworker with the Department, Father had previously described Mr. Salas as being "infatuated" with Mother. Finally, Father proposed that he and J.W. could move in with Mother's sister, Nicole Taylor, and requested that the Department conduct a home study. According to Gresset, the Department had concerns about Taylor's protectiveness and whether her limited mobility, which was the result of a car accident years earlier, would allow her to be an independent caregiver if necessary. The Department therefore "wanted to have a very thorough look at her home and her home environment" before determining whether she was a viable long-term placement option.

Department supervisor Kelly Allen described the references collected during the home study for Taylor as "indicat[ing] that she would struggle to care for a child based on her own [medical] needs," leading the Department to question whether she could provide an appropriate home for J.W. Allen further testified that Taylor subsequently informed the Department she no longer wanted to be considered as a placement for J.W. because she was concerned that Mother's presence in her home could jeopardize Taylor's visitation rights with her own children, who were in their father's custody. Taylor denied ever withdrawing from consideration as a placement.

J.W. was discharged from the hospital on May 19, and, after failing to find a suitable relative placement, the Department placed him with an unrelated foster family with whom he has lived...