Interest of S.Z.G.
| Decision Date | 31 July 2003 |
| Docket Number | NO. 12-02-00081-CV.,12-02-00081-CV. |
| Parties | <I>IN THE INTEREST OF S.Z.G., A CHILD.</I> |
| Court | Texas Court of Appeals |
APPEAL FROM THE 8TH JUDICIAL DISTRICT COURT OF HOPKINS COUNTY, TEXAS.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
Chaka Kelly ("Kelly") appeals the termination of her parental rights. In two issues, Kelly argues the trial court erred by finding that she engaged in conduct that endangered the physical or emotional well-being of the child and that termination was in the best interest of the child. We reverse and render.
On March 30, 1999, Kelly pleaded guilty to robbery. She was sentenced to imprisonment for ten years, which was probated. As a condition of her probation, Kelly was required to attend a Safe P Facility program ("SAFPF"). After completing the SAFPF program, Kelly was released to a half-way house, the Salvation Army center in Dallas. During her stay at the Salvation Army, she met Anthony Galloway ("Galloway"). Kelly left the half-way house without permission, violating her probation, to live with Galloway in Mesquite. Further, Kelly became pregnant during her relationship with Galloway.
In November of 2000, Kelly's probation was revoked. The motion to revoke included allegations that Kelly violated her probation by failing to report, failing to pay fees, fines, and costs, failing to report her change of address, failing to perform community service, failing to participate in a drug and alcohol abuse treatment plan, and failing to abide by the rules of the treatment facility until discharged. After revocation, Kelly was sentenced to one hundred days of imprisonment.(1) At the time of her sentencing, Kelly was aware that she was pregnant.
On February 8, 2001, Kelly gave birth to a baby girl, S.Z.G., at the University of Texas Medical Branch in Galveston, Texas while incarcerated in Galveston. After the birth, Kelly returned to prison. She attempted to make arrangements through the social worker for her mother, sister, or the child's father to pick up the baby at the hospital. However, her mother and sister had transportation problems, and the father, Galloway, refused to pick up the child because he did not believe that he was the father.
On February 11, 2001, Machel Ellis ("Ellis"), who was employed by the Texas Department of Protective and Regulatory Services (the "Department") in Hopkins County, Texas, received a report alleging neglectful supervision of S.Z.G. The report stated that the baby was ready to be discharged from the hospital, but no family members had arrived to pick her up. Ellis attempted to contact family members to pick up the child, but her efforts were unsuccessful. Ellis admitted that Kelly was very upset that her family failed to pick up the child. The Department filed a petition for protection of a child, for conservatorship, and for termination of Kelly and Galloway's parental rights on February 20, 2001. The child was removed from the hospital by the Department on the following day and placed in a foster home. At that time, the child was healthy, not addicted to drugs, and had not been subjected to abuse or neglect.
On February 22, 2001, Kelly was released from prison on shock probation. On that same day, Ellis met with Kelly and Kelly's probation officer, Corey Hale ("Hale"), and together reviewed Kelly's probation plan. Hale told Kelly that she had to fulfill every condition of her probation or she could go back to prison. The Department's service plan for reunification with S.Z.G. included psychological evaluations, counseling, and parenting classes.
While on shock probation, Kelly was employed at a nursing home and a fast-food restaurant. She had supervised visits with S.Z.G. in March and April of 2001. At each visit, Ellis stated that Kelly acted appropriately, was happy to see the child, and was concerned for her welfare. Shirley Steber ("Steber"), a CASA volunteer, and Tammie Brown ("Brown"), a legal worker with the Department, testified that, during supervised visits with S.Z.G., Kelly acted appropriately toward the child. Brown never saw Kelly engage in conduct that placed the child in danger. Moreover, Brown had no personal knowledge of Kelly engaging in any criminal activity. However, at a hearing on March 2, 2001, Brown recalled that the judge advised Kelly that she must stay out of jail to keep her child. Likewise, Steber also recalled the judge warning Kelly about the consequences of going back to prison.
On or about April 6, 2001, the Department placed S.Z.G. with Lonice Williams ("Williams"). A condition of the placement was that Kelly, who was living with Williams, would not have unsupervised contact with the child. However, no safety plan was completed restricting Williams from allowing the child to go anywhere unsupervised or from allowing the child to see her father, Galloway. Approximately one week later, Ellis discovered that S.Z.G. was not with Williams, but, instead, was with Galloway. At the time, the Department did not know of Galloway's location. According to Kelly, she allowed Galloway to take the child for a visit. When the Department located S.Z.G., she was sick, coughing, heavily congested, and suffering from upper respiratory problems. Ellis transported S.Z.G. back to Hopkins County. While they were en route, S.Z.G. began aspirating on the milk in her bottle, necessitating a visit to a hospital emergency room. The child was returned to the custody of the Department, removed from Williams' care, and placed back with the original foster home. Kelly was allowed weekly supervised visitation.
Kelly completed the psychological evaluation and was in the process of starting parenting classes, but never actually completed them. Kelly did meet with a counselor on one occasion. Dwayne Cox ("Cox"), a licensed chemical dependency counselor, administered a chemical dependency assessment on Kelly. According to Cox, Kelly was, and is, chemically dependent in early remission. Kelly's urine drug screen was clear.
On May 29, 2001, Kelly's probation was again revoked. Kelly pleaded true to the allegations, which included failing to obtain prior approval before changing her residence, failing to pay probation fees, fines, court costs, and restitution, failing to report a change in her employment, failing to perform community service, and failing to enroll in a drug and alcohol abuse treatment program within the specified time. Kelly was sentenced to two years of imprisonment and assessed a fine of $1,500. Because she was incarcerated, Kelly was unable to comply with the Department's service plan. Since she has been in jail, Kelly has written Ellis and Brown requesting pictures and inquiring about the welfare of the child.
On January 8, 2002, the termination proceeding was tried before the court. At trial, Ellis testified that, in her opinion, Kelly knowingly engaged in conduct endangering the physical and emotional well-being of her child by being placed back in jail. Further, allowing the child to see her father placed S.Z.G. in danger because the Department was not "aware of" the child's father at that time. Later, however, the Department gave Galloway unsupervised, weekend visitation with the child. Ellis also believes that it is in the best interest of the child for Kelly's parental rights to be terminated. Steber testified that CASA's initial recommendation was reunification. However, because of Kelly's incarceration, CASA supports S.Z.G.'s remaining in foster care and being placed for adoption. In Steber's opinion, it is in the best interest of the child that Kelly not be given custody because she cannot provide a home and support. Nonetheless, but for Kelly's incarceration, Steber would be in favor of reunification.
Brown testified that it would not be in the best interest for the child to be returned to Kelly because, due to her incarceration, she cannot provide the basic necessities such as food, clothing, and shelter. In Brown's opinion, Kelly's probation violations were detrimental to S.Z.G.'s emotional and physical well-being because they removed her ability to parent and to provide a safe place for the child. However, Brown admitted that, but for Kelly's incarceration, it is possible the child would have been reunited with Kelly.
At the conclusion of the trial, the court found, by clear and convincing evidence, that Kelly had engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. Further, the court found by clear and convincing evidence that termination of Kelly's parental rights is in the child's best interest.(2) The court appointed the Department as permanent managing conservator of S.Z.G., finding the appointment in the best interest of the child.
On March 27, 2002, the court entered its findings of fact and conclusions of law. The court found that Kelly's parental rights were terminated pursuant to section 161.001(1)(E) of the Texas Family Code, that termination was in the best interest of the child, and that each fact relating to termination was supported by clear and convincing evidence. Further, the court stated, as a conclusion of law, that the parent-child relationship between Kelly and S.Z.G. should be terminated. This appeal followed.
Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). A termination decree is "complete, final, irrevocable [and] divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit." Wiley v. Spratlan, 543 S.W.2d 349, 352 (Te...
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