Ybarra v. Texas Dept. of Human Services

• Decision Date: 16 December 1993
• Docket Number: No. 13-93-102-CV,13-93-102-CV
• Parties: Elida YBARRA, Appellant, v. The TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee.
• Court: Texas Court of Appeals

Page 574

869 S.W.2d 574

Elida YBARRA, Appellant, v. The TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee.

No. 13-93-102-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 16, 1993.

Jeanne Chastain, Portland, for appellant.

C.F. Moore, Jr., Dist. Atty., Corpus Christi, for appellee.

Before SEERDEN, C.J., and DORSEY and YANEZ, JJ.

OPINION

DORSEY, Justice.

This is an appeal from a bench trial which terminated appellant Elida Ybarra's parental rights to her five children. The Department of Human Services ("DHS") sued to involuntarily terminate both parent's rights. Mrs. Elida Ybarra appeals; Mr. Cruz Ybarra, Sr. does not. We reverse and remand.

Ybarra claims error in the trial below on three bases: first, that termination of her parental rights is not in the best interest of the children and is not based on clear and convincing evidence; second, that the judgment is not supported by legally sufficient evidence of endangerment; and third, that the trial court failed to appoint counsel for her.

I. STANDARDS FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS

The relationship between parent and child is perhaps the strongest bond between people in nature and the keystone of society. The transmission of cultural values, social status, and title to land has historically been dependent on one being the child of another. The parent-child relationship is recognized and protected by law to such a degree it is of federal constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 1391, 71 L.Ed.2d 599 (1982).

The termination of parental rights is final and ends all legal ties between the parent and child, except the child's right of inheritance. TEX.FAM.CODE ANN. § 15.07 (Vernon 1986); ¹ Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). It is of greater significance than a denial of custody or managing conservatorship to a parent, because the parties become legal strangers to one another, with neither having a right to visit or see the other.

Because the termination of the parent-child relationship severs rights treasured by the law, strict standards apply; evidence to meet those standards must be clear and convincing. Section 11.15(b) & (c); In re G.M., 596 S.W.2d 846, 846 (Tex.1980). The constitutional dimensions of the relationship require that statutes permitting termination be strictly construed in favor of the parent, and that any effort by the State to terminate it be strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985).

Involuntary termination of parental rights is governed by section 15.02. To prevail in such an action, DHS must establish two matters: that the termination is in the best interest of the child and that the parent has violated one or more of the statutory grounds. Section 15.02(1) & (2). In this case, DHS alleged two statutory violations: failure to support for a period of a year and allowing the child to remain in surroundings or conditions which endanger the physical or emotional well-being of the child.

In the judgment terminating appellant's parental rights, the trial court held that Ybarra had violated § 15.02(1)(D) in that she knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well being. The trial court also held that the termination was in the best interest of the children.

II. SUFFICIENCY OF THE EVIDENCE AS TO ENDANGERMENT

Points of error one and two complain of the sufficiency of the evidence to support the court's holding that a statutory violation occurred and that termination is in the best interest of the children.

In brief, the facts are that the appellant and her husband, the children's father, separated in 1984. In May 1989, as a result of a complaint about the children's condition, a DHS worker visited the home and found the children, ages ten to two, alone in a squalid house. Caseworkers began contacting and helping the mother to improve her and the children's condition, getting them moved into public housing. The mother was advised not to leave the children alone.

In June 1990, a caseworker again visited the family, this time in public housing, and found the children alone around 7:30 p.m. One case worker went to the mother's job site, a tavern, and returned with her to the home. The children were removed from the home and placed in foster care that night. In July, 1990, DHS was named temporary managing conservator of the children, and that conservatorship was renewed on several occasions. The motion to terminate was filed in January, 1992, and was tried in October of that year. The children have not been in the care of the mother since they were removed from her on June 28, 1990.

A parent who knowingly places or knowingly allows a child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child violates § 15.02(1)(D). The relevant time frame to determine whether there is clear and convincing evidence of endangerment is before the children were removed from Ybarra's care, i.e., on or before June 28, 1990. The supreme court defines "endanger" as, "to expose to loss or injury or to jeopardize a child's emotional or physical health." Texas Dep't of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). This provision addresses the child's surroundings and environment, rather than parental conduct. Williams v. Dep't of Human Servs., 788 S.W.2d 922, 926 (Tex.App.--Houston [1st Dist.] 1990, no writ).

The Family Code also considers impairment of the child's physical health and emotional development in actions to determine conservatorship under Chapter 14. A parent is the preferred managing conservator and may only be denied custody if there is evidence that the appointment of the parent as custodian would significantly impair the child's physical health or emotional development. Section 14.01. In order to meet that test, there must be evidence of specific actions or omissions of the parent that demonstrate that an award of custody to that parent would result in physical or emotional harm to the child. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.1990) (emphasis added). Custody determines who has the legal right to make decisions for the child, who has the privilege of making a home for the child, and who has the responsibility to care for the child. Loss of these rights is significant, but less significant than termination. Termination permanently severs all ties between the parent and child. Because of the higher level of deprivation involved in termination, a similarly stringent test should be applied to termination actions as is applied to loss of managing conservatorship. Accordingly, we will look to specific conditions or surroundings and determine whether they endanger the child.

The State must show that the child's living conditions pose a real threat of injury or harm. Williams, 788 S.W.2d at 926. The concern in § 15.02(1)(D) is "the cause of the resulting danger to the child's physical or emotional well-being." In re S.H.A., 728 S.W.2d 73, 85 (Tex.App.--Dallas 1987, no writ). There must be a connection between the conditions and the resulting danger to the child's emotional or physical well-being. Id.

Evidence of conditions at the Ybarra residence is as follows: In June 1989 Elida Ybarra and her five children were living in substandard housing; there is testimony from two social workers, Ybanez and Garcia, that the roof was open to the sky in the living room. Ybanez stated that the kitchen floor had no floor covering in part, the house was dirty, and the paint was peeling on the kitchen cabinets. The children were alone when Ybanez arrived. In Ybanez' opinion the conditions were dangerous to the physical well-being of the children. Garcia was present the same day. No day-care services were being provided to Ybarra at this time. Ybanez made monthly contacts and home visits with the Ybarra family for six to eight months.

During this time, with help from DHS, the family was moved into public housing and conditions improved. Ybanez testified that there were still problems but did not elaborate on the nature of those problems. On a visit to the family on June 28, 1990, Ybanez testified that the house was fairly clean although there was little food in the house. In contrast, Garcia, the social service technician who was present at the same time, described the house as "inadequately clean." The house did not have enough beds for all the children; the children were sleeping on mattresses placed on the floor and on sofa cushions. The children were alone when Garcia arrived. Ybanez found Ybarra at work at a bar and said she smelled of alcohol. The children were described as hungry and dirty. Only one child was wearing shoes. The younger children were dressed only in their underwear. The eldest boy was wearing only jeans. At this time Ybarra was not receiving child support, food stamps, or day care services. DHS removed the children shortly thereafter.

DHS put on no evidence of the effect on the children of the allegedly endangering conditions. There was no medical or psychological testimony. ² Latson, another DHS worker, testified about the failure of the mother to comply with directions given her by DHS workers to apply for food stamps, produce evidence of attendance at Alcoholics Anonymous meetings in Corpus Christi, attend parenting sessions, apply for day care services, and the like. She was of the opinion that termination would be in the best interest of the children.

There was evidence that Mrs. Ybarra had completed an alcohol abuse program, attended A.A. meetings, usually in Beeville, her home, but sometimes in Corpus Christi at the insistence of DHS workers, but she frequently couldn't get an attendance slip after the meetings. Mrs. Ybarra earned about $1,000 per month in the bar where she worked, was probably not eligible for food stamps because of her wages, and she had not been drinking for several years. S...