In the Interest of ECR, No. 12-0744 (Tex. June 14, 2013).
The Texas Supreme Court strikes a new balance between the parent’s fundamental liberty interest in the custody of her child and the child’s need for a safe and healthy environment.
Section 161.001(1)(O) of the Family Code allows a court to terminate a parent’s rights to her child if
- the child has been in the State’s custody for at least nine months,
- the State proves, by clear and convincing evidence, that the parent failed to comply with a court order that specified what she had to do to get her child back,
- the child was removed from the parent under Family Code Chapter 262 for “abuse or neglect of the child.”
The issue in this case is whether “abuse or neglect” includes placing the child’s physical health or safety at substantial risk or whether abuse or neglect only includes actual harm done to the child. The Court ruled that the Texas legislature intended that abuse and negligent include risk of harm. The Court reasoned that a child’s risk of harm can be determined by the parent’s actual harm to other children.
The Facts
M.R. had a prior CPS case involving physical abuse of an older son, who was in the permanent managing conservatorship of foster parents. M.R. also pled guilty to bodily injury to another child, Y.C., a third-degree felony. While spending three days in jail for the incident involving Y.C., M.R. twice attempted suicide. After being released from jail, M.R. slept on the streets and left E.C.R. with her boyfriend at his home, who was not E.C.R.’s father, had an extensive criminal history, and had previously physically abused M.R. M.R. had a history of homelessness, and at the time of the hearing, she had not lived in a home for six months. She had also not been employed at any time since E.C.R. was taken into custody.
The case worker observed that unlike Y.C., E.C.R. had not been physically abused. Because E.C.R.’s paternity was unknown, the court appointed the Department temporary managing conservator and ordered M.R. to comply with the service plan. The court warned M.R. that her failure to do so could result in the termination of her parental rights.
M.R. completed some of the service plan requirements, but she had not satisfied the “big” ones. She failed obtain employment, undergo a psychiatric evaluation, participate in psychotherapy, and she had not lived in a home for six months. M.R. did not dispute her failure to comply with the provisions of the court order that specifically established the actions necessary for E.C.R. to be returned to her and that E.C.R. had been in the Department’s conservatorship for more than nine months. Instead, she argued that termination under subsection O was improper because E.C.R. was removed because of risk of abuse based on her conduct toward his sibling, but not for actual abuse or neglect.
The Law
Subsection O requires proof of abuse or neglect. Abuse and neglect both explicitly include risk: abuse includes not just actual physical injury, but a “genuine threat of substantial harm from physical injury”; neglect includes placing a child in or failing to remove a child from a situation that requires actions or judgment beyond his capabilities and that results in “a substantial risk of immediate harm to the child” or a situation in which the child would be exposed to “a substantial risk of sexual conduct harmful to the child.”
Chapter 262 focuses on risk rather than just actual abuse or neglect: “exposure of the child to loss or injury that jeopardizes the physical health or safety of the child without regard to whether there has been an actual prior injury to the child.” The Court reasoned that although chapter 261’s “abuse” and “neglect” definitions do not govern chapter 262, they inform chapter 262 meanings. See, e.g., Brown v. Darden, 50 S.W.2d 261, 263 (Tex. 1932) (“Whenever a legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby.”). So while subsection O requires removal under chapter 262 for abuse or neglect, those words are broad enough to include risk of harm.