R______ E______ W______, Matter of

• Decision Date: 30 December 1976
• Docket Number: No. 16786,W--,R---,A,E---,16786
• Citation: 545 S.W.2d 573
• Parties: In the Matter ofppellant. (1st Dist.)
• Court: Texas Court of Appeals

Page 573

545 S.W.2d 573

In the Matter of R--- E--- W---, Appellant.

No. 16786.

Court of Civil Appeals of Texas Houston (1st Dist.).

Dec. 30, 1976.

Rehearing Denied Jan. 27, 1977.

Nicolas R. Serna, Houston, for appellant.

John L. Hill, Atty. Gen., David M. Kendall, Colin J. Carl, Frank C . Cooksey, Asst. Attys. Gen., Austin, for appellee.

EVANS, Justice.

This is an appeal from a judgment of the Juvenile Court, terminating the parent-child relationship between Dorothy Mae Woods and her child Rebecca E. Woods and naming the Harris County Child Welfare Unit as the managing conservator for the child.

In her first three points of error Mrs. Woods questions the constitutionality of the emergency sections of the Texas Family Code which authorize juvenile probation and law enforcement officers and authorized representatives of the State Department of Public Welfare to take possession of a child without notice, 'to protect him from an immediate danger to his physical safety' and which set forth procedures for the issuance of temporary orders for the care and protection of the child. Chapters 11 and 17, Texas Family Code.

Mrs. Woods contends that on January 21, 1976, after she had had an argument with the Harris County Child Welfare Unit worker assigned to the case, the Welfare Unit, without prior notice, picked up her child Rebecca, at the nursery school her child was attending. That same date a petition was filed by the Welfare Unit in Juvenile Court, requesting termination of the parent-child relationship between Mrs. Woods and her child Rebecca, and an order was thereupon entered by the Juvenile Court setting a show cause hearing on the temporary conservatorship for February 2, 1976. The order also designated that a final hearing on the termination petition would be held on April 5, 1976, but that hearing was postponed until April 29, 1976, when the court entered the order from which this appeal is taken.

Mrs. Wood contends that the statutory scheme evidenced by the Family Code is unconstitutionally vague in that the Code provisions fail to define with sufficient particularity the grounds upon which immediate custody of the child is justified and upon whose determination such action may be authorized. She argues that an emergency possession of a child under Chapter 17 of the Code, in effect, deprives the parent of a constitutional right to an immediate hearing, and as a practical result, the parent is painfully separated from the child for a lengthy and indefinite period.

Mrs. Woods concedes that she received notice from the Welfare Unit that her daughter Rebecca had been taken into custody and that she was notified of the show cause hearing. An appeal could have been taken from the emergency order, even though the appeal would not have stayed the order. Section 17.07, Tex. Family Code. Although serious questions as to the constitutionality of the statute have been raised, it has not been shown that any harm or prejudice was caused to Mrs. Woods in her defense of the State's petition for termination. Any question relating to the temporary custody of the child was rendered moot upon the rendition of a final judgment in the case terminating the parent-child relationship. City of Corpus Christi v. Cartwright, 281 S.W.2d 343 (Tex.Civ.App.--San Antonio 1955, no writ); McNeill v. Hubert,119 Tex. 18, 23 S.W.2d 331, 333 (1930). The first three points of error are overruled.

Mrs. Woods' fourth point of error, which must be sustained, is that the State failed to meet its burden of proof and that the evidence does not support the trial court's judgment terminating the parent-child relationship.

The testimony established that Rebecca Woods was born on July 26, 1971, and that her case had first been referred to the Harris County Child Welfare Unit in September 1971 when she was approximately two months old. The child apparently remained in the custody of her mother, Mrs. Woods, until June or July 1972 when Mrs. Woods was voluntarily hospitalized for treatment of alcoholism. The child was under the care of Child Welfare until November 1972 when she was returned to the custody of her mother.

Patricia Leger, an employee of the Harris County Child Welfare Unit, testified that she had been assigned to the Rebecca Woods case in November 1972 and that she handled the case until July 1973. She testified that Mrs. Woods lived in a small one bedroom rent house which has a kitchen, living room, bedroom, and bathroom. There were many rent houses in a row, very close together, and the rental was $10.00 to $12.00 per week. The house was situated in a high-crime area. Mrs. Woods kept piles of clothing about the house and there were also used, filthy rags which appeared to be gasoline or turpentine soaked. Mrs. Woods claimed she was painting and needed to have the rags for that purpose. In the kitchen were piles of garbage, edible food which had rotted and was covered with fungus and roaches, a 'sea of roaches'. Mrs. Leger set up a plan with Mrs. Woods whereby visiting nurses and a homemaker came into the house. The homemaker would stay the better part of the day and would tell Mrs. Woods about nutrition and how to clean. Mrs. Leger also worked with Mrs. Woods but had difficulty making her understand how the garbage and clutter in the house constituted a health hazard. Rebecca was a small framed, very skinny child; her stomach was distended and her limbs were tiny. She was behind in her development, unable to walk and required special high-topped shoes. Mrs. Woods did not feed Rebecca solid foods, but kept her on a bottle because that was easier. 'Rebecca constantly had a bottom that can only be described as scalded. She did not change her frequently and her diaper was urine soaked or worse, and the baby's buttocks were actually raw . . . sometime oozing, it was so raw and I worked with her on changing the child more frequently and taking better care, and she was also filthy and the baby was filthy.' Mrs. Woods was receiving psychiatric counselling and saw a psychiatrist at least every other week. In July 1973 Mrs. Woods became emotionally disturbed to the extent that she was hospitalized in the Austin State Hospital for about three months. During this time Child Welfare again assumed the care and custody of the child. Mrs. Leger assisted in her admission to the hospital and afterward had no further contact with the case. Mrs. Leger described Mrs. Woods as resourceful, manipulative and really likable; she had no family to help her and no transportation. Mrs. Woods expressed love for Rebecca and Mrs. Leger's concern was that Mrs. Woods seemed unable to protect the child from the filth of her living conditions and also that Mrs. Woods kept a loaded gun and medicine bottles within reach of the child. She also failed to feed the child correctly. The reason that Rebecca was returned to her home after Mrs. Woods was discharged from Austin State Hospital was that there seemed to be an improvement on the part of Mrs. Woods.

Dr. Marie L. Surgi, a pediatrician employed by Harris County Child Welfare, had examined Rebecca on three occasions, the first in October 1974. Rebecca was a very slender child, somewhat undernourished. She was then 3 1/2 years old and had a slight heart murmur. She had very poor balance, could not hop or jump or walk in a relatively straight line. She was sent to Mental Health/Mental Retardation therapeutic nursery to improve her mental and physical development. Dr. Surgi saw Rebecca again about a year later. Rebecca was then going to Head Start in the morning and to the therapeutic nursery in the afternoon, and a counsellor was seeing the mother and child once a week. Rebecca was brought in to see Dr. Surgi for possible malnutrition, because she was so thin. She had gained considerably since the first visit, but she was tall, still thin and her muscles were extremely flabby. Dr. Surgi made note that the child showed no great neglect, but that she was underweight which could be due to insufficient food. Dr. Surgi also noted that Rebecca had improved a great deal in her motor skills and, to some extent, in her social skills. About two and a half months later, in January 1976, Dr. Surgi again examined Rebecca. Rebecca had gained a couple of pounds, but was still a very thin looking child. Dr. Surgi noted that Rebecca was very potbellied and that she had a flatulent abdomen with weak abdominal muscles frequently considered to be the result of poor nutrition. Rebecca's color was good but her skin was extremely dry; her clothing clean but ragged. Dr. Surgi had not ever talked to Mrs. Woods. She noted, however, that the child loved her mother and that the mother apparently loved the child.

Judy Albracht, an employee of Harris County Child Welfare Unit, was assigned to the case from September 19, 1975, until the show cause hearing on February 5, 1976. Mrs. Albracht testified she first went to Mrs. Woods' home on a report that the child had been whipped for faking an illness. She observed that the apartment was very dirty, very cluttered, and had an odor similar to that of an animal cage. The floor had visible dirt, peanut shells and other debris, and the kitchen table was full of bottles and boxes. She testified that Mrs. Woods denied any physical abuse of the child and claimed that the child would scream when she, Mrs. Woods, was not even in the room. Mrs. Albracht testified that she observed three large sores on Rebecca's left thigh and that it appeared to be swollen. Approximately one week later Mrs. Albracht again went to Mrs. Woods' home. She noticed that the kitchen table was filled with food and garbage; there was a large garbage bag next to the table which was full and the counter, sink and stove were piled about a foot high with used dishes, pots, leftover food and garbage. The floor had dirt and spills rubbed into the linoleum and there were roaches and fleas. The hallway was loaded; the living room was...