In the Interest of J.L.B. And J.R.B., Children.

• Decision Date: 02 September 2011
• Docket Number: No. 06–11–00019–CV.,06–11–00019–CV.
• Citation: 349 S.W.3d 836
• Parties: In the Interest of J.L.B. and J.R.B., Children.
• Court: Texas Court of Appeals

349 S.W.3d 836

In the Interest of J.L.B. and J.R.B., Children.

No. 06–11–00019–CV.

Court of Appeals of Texas, Texarkana.

Submitted Aug. 10, 2011.Decided Sept. 2, 2011.

Lew Dunn, Law Office of Law Dunn, Longview, for appellant.Michael C. Shulman, Office of General Counsel, Austin, for appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

This is a joint appeal by the mother and father of two children, Samuel and Joshua,¹ of a judgment of the termination of their parental rights to those children. The trial court gave the same three reasons as the bases for terminating each parent's rights. The trial court found that both parents

knowingly placed or knowingly allowed the [children] to remain in conditions or surroundings which endanger the physical or emotional well-being of the [children]; ²

engaged in conduct or knowingly placed the [children] with persons who engaged in conduct which endangers the physical or emotional well-being of the [children]; ³

had [their] parent-child relationship terminated with respect to another child based on a finding that [the parents'] conduct was in violation of § 161.001(1)(D)or (E), Texas Family Code, or substantially equivalent provisions of the law of another state.⁴

The trial court also found that it was in the best interest of the children that the parental relationship be terminated.

We affirm the trial court's judgment of termination.

Sufficiency of the Evidence

The parents' first point of error asserts that the evidence is legally insufficient to support the findings by the trial court as recited above. The second point of error contends that the evidence is factually insufficient to support those findings.⁵

We begin by summarizing the testimony and evidence admitted at trial, generally grouping the evidence into subjects which were ultimately relevant to the trial court's rulings. We focus on the following areas: the children's past and present circumstances and upbringing, the condition of the family home, the intellectual, emotional, developmental, physical, and educational status of the children, and the mother's and father's past and present status as it affects their ability to parent the children.

Background and Living Conditions

Samuel (born in January 2005) and Joshua (born in January 2007) first came to the attention of the Child Protective Services Division of the Texas Department of Family and Protective Services (CPS) when a law enforcement officer stopped a speeding vehicle driven by Russell McCurry, a friend of the boys' parents. Samuel and Joseph were in the back seat of the car and at that time, Joshua was naked and wrapped in a blanket while Samuel was dressed in a jumpsuit. The deputy sheriff who stopped the vehicle said Samuel's jumpsuit was “filthy” and the boy had defecated in his pants. Both boys smelled as if neither had been bathed in days. McCurry testified that Joshua was wrapped in the blanket because he had also defecated in his pants, causing McCurry to throw the child's clothes away. At the time of the stop, Samuel was five years old and Joshua was three, but neither was potty trained.⁶ Officers took the boys to the police station, where they were cleaned up. CPS representatives went to the parents' home to investigate and the investigation revealed numerous unsafe and filthy conditions, discussed below.

McCurry testified he had taken the boys, with the acquiescence of the parents, to panhandle (i.e., to beg for money) from people in stores and parking lots. Although McCurry equivocated somewhat in his testimony,⁷ it was clear that he had used the boys in this kind of money-raising endeavor on previous occasions. McCurry had used the boys in this fashion before to acquire money, both alone and in concert with the parents. Although Detective David Falco initially testified that the father had told Falco he and McCurry used the boys in panhandling, on cross-examination, Falco said that the father was “evasive about the panhandling issue during his interview” and that concrete information that the boys were used for panhandling came solely from McCurry. The day before the traffic stop, after the boys had been taken to school, the parents and McCurry tended to panhandling, using the proceeds to buy drugs and then “g[e]t high.” Later that night, while the parents continued to smoke crack cocaine in their bedroom, they allowed McCurry to take the boys on another panhandling trip,⁸ McCurry relating that the father had told him to take the boys and “go make some money.” McCurry and the boys were gone for a day or more. At some point, McCurry went to a drug house to purchase crack cocaine, but he said that he was careful not to take the boys into the house with him. Rather, he got a woman (whom he did not know) to come out from the house and sit with the boys while he purchased and smoked his crack cocaine.

Based on testimony from Detective Falco and the deputy who conducted the traffic stop of McCurry, it appears the parents may have reported the children as having been kidnapped. However, since the parents had waited until after the boys had been gone for at least a day before reporting their absence and due to inconsistencies in the story the parents related, the authorities treated their news as a missing persons report and not as a kidnapping. ⁹

The State presented several witnesses who had visited the family home and testified as to its condition. The State's contact with the home began on or around the day the children were found in McCurry's charge. In general, the testimony and pictures admitted into evidence described a dwelling which could be described most charitably as a cluttered mess and, more realistically, as an unsanitary, unsafe fire hazard. (As if confirming the observations about the unsafe condition of the house, it burned to the ground within a few months after the boys' removal by CPS.)

Several witnesses testified to an unpleasant odor coming from the family's home. Specifically, Verdell Burton ¹⁰ described the smell as a “foul odor” from urine and testified that on one of her visits to the home, she observed dog urine on the floor. When she discussed the presence of the undisturbed dog urine, the parents acted as if such a condition was normal and made no attempt to clean it from the floor.

CPS investigator Clough likewise described a “very foul odor” emanating from the house.¹¹ Clough had first gone to the family home after the boys had been discovered in McCurry's automobile, the purpose of her visit being to investigate the conditions at the home and to make contact with the boys' parents. Clough was present at the house when the police brought the boys home after having been removed from McCurry's automobile. At that time, the boys were still wrapped in blankets because the police had washed the boys' clothes and they were not yet dry. Although the parents were not at the house when Clough arrived, she was met by the boys' paternal grandmother, who also lived in the house. After Clough asked the grandmother, who had significant vision problems, to locate clothing for the boys, the grandmother took a pair of shorts and a T-shirt (neither of which was clean) from one of many piles of clothes in the house, handing the shorts to Samuel and the T-shirt to Joshua. Samuel donned the shorts, sans any underwear, and Joshua put on the T-shirt, backwards. Clough considered the clothing inappropriate because although it was warm in the house, the outside temperature was quite cool. She was also concerned about sharp, torn edges of the linoleum floor which pointed up, and spider webs on windows.

When Clough asked the grandmother about the smell which permeated the house, the grandmother responded that “the house needed to be tidied up a bit.” Clough found this to be something of a monumental understatement, observing piles of trash and clothes throughout the house,¹² “old food, soiled pots” on the kitchen table, and “pots on the floors of the kitchen with old food in them.” Clough said although the chairs around the kitchen table were all broken, their condition did not prevent Joshua from climbing up the chairs onto the cabinets “as if he were playing a game.” Despite the fact that the kitchen sink was full of dirty dishes, it did not appear to be functional because “it was broken and actually leaning to the side.” Clough discovered that the refrigerator contained rodent droppings, but no edible food. ¹³ Her description of the area continued:

There were tons of pots, old food, there was trash underneath the refrigerator. And when I refer to trash, it is actually a combination of clothing, paper goods, metal goods, forks and spoons, just appeared to be a kind of a catch all.Clough was also concerned to find one of the burners on the stove was lit and burning. Clough feared the children, with their access to the kitchen, could burn themselves. The stove's knobs were all removed, and the grandmother explained a “special tool” was needed to turn off the stove, which was kept burning to assist in heating the house. Clothing and paper were packed beneath the stove, where a broiler or storage drawer was usually located; Clough considered this to be a fire hazard. Clough was concerned by the high number of electrical appliances and their cords, and she observed the boys playing with electrical outlets. Throughout the house Clough saw space heaters situated dangerously close to piles of clothes, which Clough said were fire hazards.

B.J. Owens, city code enforcement officer for the City of Kilgore, testified that he had made several investigations of the house since 2005, issuing thirteen or fourteen citations for hazardous conditions (e.g., various junk and debris on the exterior and problems with rodent and mosquito harborage on the premises). He observed that in May 2010, the house had no running water.¹⁴ At some point, the house was formally condemned. Owens said he was...