Tina Leal v. Texas Department of Protective and Regulatory Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00516-CV

Tina Leal, Appellant

v.

Texas Department of Protective and Regulatory Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 97-05599, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

Appellant Tina Leal appeals from a decree terminating her parent-child relationship

with her four children and appointing appellee Texas Department of Protective and Regulatory

Services (the Department) permanent managing conservator. (1) We will affirm the decree of

termination.

BACKGROUND

Appellant married Eliazar Leal in 1981. They had four children: S.L.L., born

October 24, 1990; E.R.L., born November 3, 1992; C.J.L., born July 5, 1994; and S.Z.L., born

May 27, 1995. In May 1995, S.L.L. made an outcry statement to Ms. Leal that Mr. Leal had

sexually abused her. Ms. Leal notified the authorities of S.L.L.'s allegations. Later that year,

Mr. Leal was convicted of sexually assaulting S.L.L. and was sentenced to two life terms'

imprisonment. He remained incarcerated at the time of trial in June 1998.

Between February of 1995 and September of 1997, the Department received

thirteen referrals about appellant and her children. On August 8, 1997, the Leals' neighbor called

911 to report that the Leal children were unsupervised and playing in the street and that one of

them had thrown glass at another child. Responding to the call, Austin Police Officer Lorenzo

Cyphers arrived at the Leal residence and was allowed inside by the two older children. Cyphers

testified that the house had a "strong, foul odor." He asked to see a parent, at which time S.L.L.

told him that her mother was asleep. When S.L.L. was unable to wake Ms. Leal, Cyphers began

calling her name and proceeded to the bedroom where Ms. Leal was sleeping. Ms. Leal

eventually awoke and emerged from the bedroom. Cyphers called his supervisor, Sergeant John

Neff, to the house. Neff testified that there was food on the walls, furniture, and floor; that flies,

maggots, roaches, gnats, and other insects covered the floor and the spoiled food; and that the

house reeked of urine and feces. He also stated that the children were dirty, that they were not

wearing shoes, and that their clothing was filthy. Neff further testified that the odor in the house

was so bad, he had to step outside several times to avoid vomiting.

At that time, the officers asked Ms. Leal about the state of her home. Ms. Leal

replied that the filthy condition of the house resulted from her children's failure to clean up after

themselves and was in no way her fault. The officers contacted Child Protective Services (CPS),

at which time Ms. Leal and the four children retreated into the bedroom and blocked the door.

Eventually, S.L.L. climbed through a bedroom window and reentered the house to go to the

bathroom. The officers placed S.L.L. in a patrol car, whereupon Ms. Leal and the other three

children came out of the bedroom. A CPS worker arrived a short while later and removed the

children.

On August 11, 1997, the Department filed its petition seeking termination of the

parent-child relationship between Ms. Leal and her four children. The Department alleged that

Ms. Leal knowingly placed or knowingly allowed the children to remain in conditions or

surroundings that endangered their physical or emotional well-being; that she engaged in conduct

or knowingly placed the children with persons who engaged in conduct that endangered their

physical or emotional well-being; and that termination was in the best interest of the children. See

Tex. Fam. Code Ann. § 161.001 (1)(D), (E), (2) (West Supp. 2000).

The Department returned the children to Ms. Leal on August 25, 1997, because

she had made some progress in cleaning the home. But, on September 26, 1997, after Ms. Leal

failed to maintain any improvement and had allowed the home to return to an unhealthy state, the

Department again removed the children. The Department then pursued this termination action.

At the conclusion of the trial, the jury found that the parent-child relationship

between Ms. Leal and her children should be terminated because: (1) termination was in the best

interest of the children; and (2) she had knowingly placed or knowingly allowed the children to

remain in conditions or surroundings that endangered the children's physical or emotional well-being or, alternatively, (3) she had engaged in conduct or knowingly placed the children with

persons who engaged in conduct that endangered the children's physical or emotional well-being.

See id. The trial court rendered judgment on the verdict, from which Ms. Leal brings this appeal.

A court may terminate a parent-child relationship if it finds that: (1) the parent has

engaged in any of the specific conduct enumerated in the Family Code as grounds for termination;

and (2) termination is in the child's best interest. See id. § 161.001(1), (2); Texas Dep't of

Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987); Holley v. Adams , 544 S.W.2d 367,

370 (Tex. 1976). In six points of error, Ms. Leal contends that the evidence is legally and

factually insufficient to support the verdict. Thus, she argues, the judgment must be reversed.

DISCUSSION

Standard Of Review in Cases Requiring Proof by Clear and Convincing Evidence

The natural right existing between a parent and child is one of constitutional

dimensions. See Wiley v. Spratlan , 543 S.W.2d 349, 352 (Tex. 1976). Therefore, the

involuntary termination of parental rights interferes with fundamental constitutional rights. See

Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985); In re G.M. , 596 S.W.2d 846, 846 (Tex. 1980);

see also Stanley v. Illinois , 405 U.S. 645, 651 (1976) (characterizing parental rights as "essential"

and "a basic civil right of man"). Involuntary termination proceedings must be strictly scrutinized

in favor of preserving the relationship. See Holick , 685 S.W.2d at 20 .

Most civil actions require that disputed issues of fact be resolved by a

preponderance of the evidence. See Sanders v. Harder , 227 S.W.2d 206, 209 (Tex. 1950). In

light of the grave nature of the proceedings and the constitutional rights implicated, the Texas

Supreme Court adopted the "clear and convincing" standard of proof for the trial of actions

seeking termination of parental rights. See G.M. , 596 S.W.2d at 847 . The legislature amended

the Family Code to require that grounds justifying termination be proven by clear and convincing

evidence. See Act of May 24, 1995, 74th Leg., R.S., ch. 709, § 1, 1996 Tex. Gen. Laws 3745

(codified at Tex. Fam. Code Ann. § 161.001 , since amended). Clear and convincing evidence

means the measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegation sought to be established. See State v.

Addington , 588 S.W.2d 569, 570 (Tex. 1979); Tex. Fam. Code Ann. § 101.007 (West 1996).

Clear and convincing evidence is an intermediate standard of proof falling between the lesser

burden of preponderance of the evidence and the greater standard of proof beyond a reasonable

doubt required in criminal proceedings; it applies in only limited instances. See Ellis County State

Bank v. Keever , 888 S.W.2d 790, 792 (Tex. 1994); G.M. , 596 S.W.2d at 847 ; Addington , 588

S.W.2d at 570 . The purpose of the standard of proof is to instruct the fact finder as to the degree

of confidence it should have in its decision so as to assure correctness of the factual conclusion;

to allocate risk between the parties; and to indicate the relative importance attached to the ultimate

decision. See G.M. , 596 S.W.2d at 847 .

Although it is clearly established that the grounds for terminating a person's

parental rights must be proven by clear and convincing evidence in the trial court, the correct

standard of review an appellate court should apply in an appeal of the matter has been less certain.

Some courts of appeals have held that the heightened burden of proof at the trial court requires

an intermediate standard of review on appeal while others have held that the standard remains

unchanged. Compare Spangler v. Texas Dep't of Protective & Regulatory Servs. , 962 S.W.2d

253, 257 (Tex. App.--Waco 1998, no pet.); In re B.R. , 950 S.W.2d 113, 117-19 (Tex. App.--El

Paso 1997, no writ); Edwards v. Texas Dep't of Protective & Regulatory Servs. , 946 S.W.2d 130,

135-37 (Tex. App.--El Paso 1997, no writ); In re H.C. , 942 S.W.2d 661, 663-64 (Tex. App.--San

Antonio 1997, no writ); Slatton v. Brazoria Co. Protective Servs. Unit , 804 S.W.2d 550, 556

(Tex. App.--Texarkana 1991, no writ); Williams v. Texas Dep't of Human Servs. , 788 S.W.2d

922, 926 (Tex. App.--Houston [1st Dist.] 1990, no writ), overruled, In re J.N.R. , 982 S.W.2d

137, 143 (Tex. App.--Houston [1st Dist.] 1998, no pet.); In re L.R.M. , 763 S.W.2d 64, 66 (Tex.

App.--Fort Worth 1989, no writ); Neiswander v. Bailey , 645 S.W.2d 835, 835-36 (Tex.

App.--Dallas 1982, no writ) (applying intermediate standard of review), with J.N.R. , 982 S.W.2d

at 143 ; In re D.L.N. , 958 S.W.2d 934, 940 (Tex. App.--Waco 1997, pet. denied); Spurlock v.

Texas Dep't of Protective & Regulatory Servs. , 904 S.W.2d 152 , 155-56 (Tex. App.--Austin 1995,

writ denied); In re J.J. , 911 S.W.2d 437, 439-40 (Tex. App.--Texarkana 1995, writ denied); In

re R.D.S. , 902 S.W.2d 714, 716 (Tex. App.--Amarillo 1995, no writ); Faram v. Gervitz-Faram ,

895 S.W.2d 839, 843 (Tex. App.--Fort Worth 1995, no writ); In re J.F. , 888 S.W.2d 140, 141

(Tex. App.--Tyler 1994, no writ); In re A.D.E. , 880 S.W.2d 241, 245 (Tex. App.--Corpus Christi

1994, no writ) (declining to apply intermediate standard); see also Bill Vance, The Clear and

Convincing Evidence Standard in Texas: A Critique, 48 Baylor L. Rev. 391 (1996). Currently,

only a few courts of appeals employ what they term a heightened standard of review. See, e.g.,

Spangler , 962 S.W.2d at 257 ; Edwards , 946 S.W.2d at 135-37 ; H.C. , 942 S.W.2d at 663-64 ;

Neiswander , 645 S.W.2d at 835-36 .

We have held that the heightened standard of proof required in the trial court does

not alter the factual sufficiency standard of review in the appellate court. See D.O. v. Texas Dep't

of Human Servs. , 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ). But our holding to

that effect does not mean that we review every trial court decision to see whether the fact in

dispute has been shown by a mere preponderance of the evidence. Just as the factual sufficiency

review of a trier of fact's verdict in a criminal case necessarily incorporates the State's burden to

prove its case beyond a reasonable doubt, the factual sufficiency review of a civil appeal

necessarily incorporates the burden of proof the proponent was required to meet at trial. See

Johnson v. State , No. 1915-98, slip op. at 16-18 (Tex. Crim. App. Feb. 9, 2000); Clewis v. State ,

922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State , 823 S.W.2d 375, 381 (Tex.

App.--Austin 1992, no pet.); In re King's Estate , 244 S.W.2d 660, 662 (Tex. 1951); see also

Meadows v. Green , 524 S.W.2d 509, 510 (Tex. 1975) (per curiam) ("In Texas there are but two

standards by which evidence is reviewed: factual sufficiency and legal sufficiency."). Thus, our

factual sufficiency review of the evidence in a termination case necessarily incorporates whether

the challenged finding has been proven by clear and convincing evidence. See D.O. , 851 S.W.2d

at 355 (holding record contained clear and convincing evidence that was factually sufficient);

Baxter v. Texas Dep't of Human Resources , 678 S.W.2d 265, 267 (Tex. App.--Austin 1984, no

writ).

We believe that our sister courts of appeals in fact employ this same exercise in

reaching a decision, despite our corporate difficulty in articulating the standard and confusion of

terminology in opinions. Indeed, many courts use the term "clear and convincing" or its

definition in formulating their "intermediate" standard and asking whether the trier of fact could

have found the evidence to reach the required threshold. See, e.g., Spangler , 962 S.W.2d at 257

( "[C]ourt of appeals will only sustain a point of error alleging insufficient evidence if the trier of fact

could not reasonably find the existence of the fact to be established by clear and convincing

evidence."); Edwards , 946 S.W.2d at 135-37 ("Under this standard, we must consider whether

the evidence was sufficient to produce in the mind of the fact finder a firm belief or conviction

as to the truth of the allegations sought to be established."); H.C. , 942 S.W.2d at 663-64 ("In

reviewing a jury's findings based on a clear and convincing standard, we ask ourselves whether

sufficient evidence was presented to produce in the mind of a rational factfinder a 'firm belief or

conviction as to the truth of the allegations sought to be established.'"); Neiswander , 645 S.W.2d

at 835-36 ("[I]t is the duty of the appellate court in reviewing the evidence to determine . . .

whether the trier of fact could reasonably conclude that the existence of the fact is highly

probable." (2) ). Indeed, courts have "rejected" the "intermediate" standard but have still taken the

burden at trial into consideration on review. See, e.g., Faram , 895 S.W.2d at 843 ("Simply put,

appellate courts must find the measure of clear and convincing evidence sufficient to support the

judgment of the trial court."); D.O. , 851 S.W.2d at 355 ("After careful review of this record, we

are persuaded that clear and convincing evidence exists that is both legally and factually sufficient

to support the trial court's finding . . . .")

. The requirement of clear and convincing evidence is merely another method of

stating that a cause of action must be supported by factually sufficient evidence to prove the matter

at issue by the required burden of proof. See Meadows , 524 S.W.2d at 510 . Although there are

three standards of proof that may govern the trial of an issue--proof by a preponderance of the

evidence, proof by clear and convincing evidence, and proof beyond a reasonable doubt--there are

only two standards by which an appellate court may review evidence regarding an adverse finding

on the issue--legal sufficiency and factual sufficiency. See id. ; Faram , 895 S.W.2d at 843 .

Therefore, in an involuntary termination case, the trial court requires the movant

to prove its allegations by clear and convincing evidence. The party complaining of an adverse

finding may then bring both a legal and factual sufficiency challenge on appeal, and we review

the finding in light of the burden of proof at trial.

In deciding a legal sufficiency challenge to an adverse finding on an issue on which

the appellant did not have the burden of proof, we consider only the evidence and inferences

tending to support the finding and disregard all evidence to the contrary. If more than a scintilla

of probative evidence supports the finding, it must be upheld. See Garza v. Alviar , 395 S.W.2d

821, 823 (Tex 1965); King's Estate , 244 S.W.2d at 661 . In determining a factual sufficiency

challenge, we consider a neutral review of all the evidence, both for and against the finding, and

will set aside the judgment only if proof of the fact is so obviously weak or the finding so contrary

to the weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain , 709 S.W.2d

175, 176 (Tex. 1986); Garza , 395 S.W.2d at 823 . We will not substitute our judgment for that

of the trier of fact merely because we reach a different conclusion. See Westech Eng'g., Inc. v.

Clearwater Constructors, Inc. , 835 S.W.2d 190, 196 (Tex. App.--Austin 1992 , no writ); see also

Hann v. Texas Dep't of Protective & Regulatory Servs. , 969 S.W.2d 77, 82-83 (Tex. App.--El

Paso 1998, pet. denied) (noting that even under "intermediate" level of review, fact finder's

resolution of conflicting evidence generally regarded as conclusive). Applying these standards

of review to the facts before us, we hold the evidence to be both legally and factually sufficient

to sustain the verdict.

Best Interest of the Children

In points of error five and six, Ms. Leal complains that the evidence is legally and

factually insufficient to support the jury's finding that termination was in the children's best

interest. The Texas Supreme Court has recognized several factors that may be considered in

determining whether termination is in a child's best interest:

(A) the desires of the child; (B) the emotional and physical needs of the child now

and in the future; (C) the emotional and physical danger to the child now and in the

future; (D) the parental abilities of the individuals seeking custody; (E) the

programs available to assist these individuals to promote the best interest of the

child; (F) the plans for the child by these individuals or by the agency seeking

custody; (G) the stability of the home or proposed placement; (H) the acts or

omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one; and (I) any excuse of the acts or omissions of the

parent.

Holley , 544 S.W.2d at 372 (footnotes omitted). This list of relevant considerations is not

exhaustive; other factors may be considered when appropriate. See id. Likewise, a fact finder

is not required to consider all of the listed factors. See id. The record in this case contains

evidence regarding several of the Holley factors.

1. Desires of the children

The record contains limited evidence of the children's desires. Initially, S.L.L.

expressed a desire to return to her mother but has since indicated to her foster parents and

therapists that she does not wish to return home because she fears that her mother will not permit

her to continue seeing the therapist she likes. S.L.L. has also expressed concern about the

condition of the house and whether she and her brothers would be safe.

2. The emotional and physical needs of the children

All the children have various physical or developmental problems that require

attention. C.J.L. appears to have the most serious problems; he has a tethered spinal cord and

a type of spina bifida. Because of these conditions, when C.J.L. was born, doctors told Ms. Leal

not to place him on his stomach unless someone who could perform cardiopulmonary resuscitation

("CPR") was present. The child also had problems with reflux and urination stemming from his

spinal condition.

Joann Pope, an early intervention specialist who works with developmentally

delayed children, testified that Ms. Leal appeared to keep C.J.L. in his baby swing more than was

healthy, and as a result, C.J.L. had difficulty rolling over. Pope testified that, even after she

explained that she was certified in CPR, Ms. Leal would not let her take C.J.L. out of the baby

swing.

C.J.L.'s foster mother testified that some of his medical problems disappeared

quickly or never surfaced at all while C.J.L. lived in her home. For instance, C.J.L. never

suffered from reflux in the foster home. The foster mother consulted a doctor who indicated that

C.J.L.'s difficulty in digesting solid food may have resulted from Ms. Leal's feeding him only

liquids, thereby preventing him from developing the ability to digest solid foods--that is, Ms. Leal

fed C.J.L. liquids because he choked on solid food, but he choked on solid food because Ms. Leal

gave him only liquids.

In addition to C.J.L.'s medical problems, the children, particularly the older two,

also have emotional problems that need attention. Several psychologists, therapists, and social

workers testified that S.L.L. will require extensive, long-term counseling to deal with her sexual

abuse and that E.R.L. has difficulty controlling his anger and needs anger-management therapy.

Ms. Leal testified that E.R.L. punched holes in the walls of their home.

Finally, the record indicates that, at the time of removal, all four children were

developmentally delayed to varying extents. But at the time of trial, although the children were

still somewhat delayed, all showed significant improvement in their new environments.

3. The emotional and physical danger to the children

The record contains evidence of several instances in which Ms. Leal placed her

children in grave danger. First, she kept a bowl full of her various medications on the floor or

bedside table, where the children had easy access. Dr. Bernard Cordoba, a psychiatrist who had

prescribed some of the anti-depressants Ms. Leal kept in the bowl, testified that ingesting as few

as five tablets could kill a child. Also, Ms. Leal made no effort to keep kitchen knives out of the

reach of the children. On one occasion, E.R.L. pulled down one of the knives and cut C.J.L.'s

finger with it. A CPS caseworker testified that she asked Ms. Leal to move the knives but that

Ms. Leal declined, claiming that the children would still be able to get them. On more than one

occasion, Ms. Leal left her very young children, including an infant, alone in her car.

The general condition of the house also presented a danger to the children's well-being. As described above, the floors were covered with spoiled food and insects. In addition,

there were feces smeared on the walls in the living room and the bathroom. Ms. Leal testified

that E.R.L. smeared the waste, calling it an "art project" and that, although she knew it was

unsanitary, she did not clean it up because the child asked her not to disturb his work.

The emotional danger in which Ms. Leal placed her children is well demonstrated

by an incident involving Ms. Leal's attempted suicide. In August 1995, Ms. Leal tried to kill

herself by ingesting several medications along with alcohol. Once she had taken the pills, she lay

in the bed where her four children were sleeping. Ms. Leal testified that she did not believe the

children would have been affected if she had been successful in her attempt and the children had

awakened to find her dead.

4. Ms. Leal's parental abilities

The record contains evidence revealing Ms. Leal's seriously deficient parenting

skills and her inability to make informed decisions regarding her children. She suffered from

depression that interfered with her ability to care for her children. In a videotaped interview, (3)

S.L.L. described ways in which her mother had failed to provide for the needs of S.L.L. and her

brothers. For example, S.L.L. was often responsible, at age six and younger, for making sure

she and her brothers were fed. S.L.L. was also frequently absent from school because Ms. Leal

would not wake up to take her.

Evidence also reflects that Ms. Leal failed to provide her children with sanitary

conditions in their home. As described above, the house was filthy and unsafe the day the

children were initially removed. Numerous witnesses, including the CPS caseworker, Ms. Leal's

therapist, and a social worker, testified that they worked with Ms. Leal to set goals for her to

meet regarding her home. Mary Tipps, a social worker with the Department, made approximately

twenty-five visits to Ms. Leal's home to help her clean and maintain the house, but the house was

not clean for longer than a few short weeks.

Several witnesses, including Mr. Leal, testified that Ms. Leal was inactive when

it came to her children and would "parent from her chair"--sitting in a chair in her living room and

directing her children from that position. Although Ms. Leal was told she needed to be more

active with her children, she made no significant changes in her behavior.

A psychological evaluation revealed that Ms. Leal manifests poor frustration

tolerance and gives up easily in stressful situations. The psychologist who administered the test

indicated that Ms. Leal's low score could indicate an unwillingness to try rather than an inability

to perform.

Finally, evidence indicated Ms. Leal exercised extremely poor judgment where her

children were concerned. For instance, she deferred to four-year-old E.R.L.'s request not to

clean the feces from the wall even though she knew they posed a health hazard. The evidence also

reflects that Ms. Leal treats S.L.L. as a peer rather than a daughter. As an example, Ms. Leal

testified that when S.L.L. told her about the sexual abuse, Ms. Leal placed the burden of deciding

whether to go to the police on the six-year-old child.

5. Parenting-assistance programs available to appellant

A number of witnesses, including Ms. Leal, testified to the parenting-assistance

programs Ms. Leal had used. (4) Despite all these programs, several witnesses testified that Ms.

Leal showed no significant signs of improvement in her parenting. For instance, Laura Cheal-Smith, a counselor at DayGlo who led a class on protective parenting of sexually abused children,

characterized Ms. Leal's overall progress in the class as minimal. And, as discussed above, the

record indicates that Ms. Leal took little or no advantage of the assistance offered in maintaining

her house.

6. Acts or omissions by Ms. Leal and excuses for those acts or omissions

A parent's acts or omissions can also indicate an inappropriate parent-child

relationship. See Holley , 544 S.W.2d at 372 . For example, Ms. Leal spoke regularly with

S.L.L. by telephone after the children's removal from the home. Two witnesses testified that Ms.

Leal talked in such a way that frightened and worried her daughter and made statements to S.L.L.

inappropriate for a parent-child relationship. Similarly, Ms. Leal's failure to keep her house safe

and sanitary, as discussed above, is an example of an omission that casts doubt on Ms. Leal's

ability to parent effectively.

The Department also presented evidence that Ms. Leal had failed to sever ties with

Mr. Leal following his arrest and conviction for the sexual assault of S.L.L. She never divorced

Mr. Leal, despite taking some steps toward that end; instead, she visited him in jail on a number

of occasions and brought the children with her on some of those visits.

The record indicates that the jury was presented with abundant evidence on the

desires and needs of the children, the emotional and physical danger to the children, Ms. Leal's

parenting ability, her ability to benefit or not to benefit from assistance with her parenting skills,

and her acts or omissions as a parent. Having reviewed all the evidence, we hold that a

reasonable jury could have found by clear and convincing evidence that it was in the children's

best interest to terminate appellant's parental rights. We overrule Ms. Leal's fifth and sixth points

of error.

Conduct and Surroundings That Endangered the Children

In her first through fourth points of error, Ms. Leal argues that the evidence is

legally and factually insufficient to support a finding that she endangered the children with her

conduct or through their surroundings. The jury was instructed that in order to terminate the

parent-child relationship, the jury had to find by clear and convincing evidence Ms. Leal

endangered the children's physical or emotional well-being either by her conduct or by means of

their surroundings and that termination of the parent-child relationship would be in the best

interest of the children. Termination would be proper if the jury found either of the above listed

grounds to be true. In response to the question, "Should the parent-child relationship between

[Ms.] Leal and the children . . . be terminated?" the jury answered "yes" as to each child. To

affirm the termination decree, we must find that the evidence is legally and factually sufficient to

support only one of these bases. For the sake of completeness, we will consider the evidence

pertaining to both grounds.

The supreme court has interpreted the term "endanger" for purposes of involuntary

termination proceedings. Conduct that endangers a child is more than a threat of metaphysical

injury or the possible ill effects of a less-than-ideal family environment. See Boyd , 727 S.W.2d

at 533 . However, it is not necessary for the conduct to be directed at the child or for the child

to suffer actual injury. See id . Rather, "endanger" means to expose to loss or injury; to

jeopardize. See id. Unsanitary conditions can qualify as surroundings that endanger a child. See

In re M.C. , 917 S.W.2d 268, 270 (Tex. 1996).

We previously recited evidence of conduct on the part of Ms. Leal that endangered

her children both by her conduct and neglect, such that she placed them in danger. For example,

evidence indicates that Ms. Leal allowed the children to have access to her medication even

though ingesting the medication could have killed the children. Although the children were not

actually harmed, Ms. Leal placed them in jeopardy and thus endangered them. See Boyd , 727

S.W.2d at 533 . Also, in planning to commit suicide in such a way that her children would

awaken to find her dead, Ms. Leal jeopardized the emotional well-being of her children. As with

the medication, Ms. Leal exposed the children to a threat of loss and thus endangered them. See

id . In neither instance did Ms. Leal perceive the possible harm or danger, even after the fact.

She failed to supervise the children, keep them clean and fed, or see to their educational

requirements. She placed inappropriate burdens on her young children and transferred important

duties to them that were her responsibility. We hold that a reasonable jury could have found by

clear and convincing evidence that Ms. Leal's conduct endangered the physical or emotional well-being of the children.

Many of the facts already recited also support the finding that Ms. Leal knowingly

placed or knowingly allowed her children to remain in conditions that endangered their well-being. The record reflects that the Leal home was shockingly unsanitary, evidenced by spoiled

food and insects on many of the interior surfaces. There was also a strong odor of urine and feces

in the house. A number of witnesses characterized the home as unsafe. For example, the CASA

worker testified that she slipped on mayonnaise and ketchup when she walked in the door.

Several witnesses also testified about piles of garbage in the house and in the yard. We hold that

a reasonable jury could have found by clear and convincing evidence that these conditions created

surroundings that endangered the physical or emotional well-being of the children.

After careful review, we are persuaded that the record contains clear and

convincing evidence exists that is legally and factually sufficient to support the jury's findings that

Ms. Leal: (1) engaged in conduct or knowingly placed the children with persons who engaged in

conduct that endangered the children's physical or emotional well-being; and (2) allowed them to

remain in conditions and surroundings that endangered their physical or emotional well-being.

Either of these grounds alone support termination when coupled with the finding that termination

is in the children's best interest. We overrule points of error one through four.

CONCLUSION

Because there is legally and factually sufficient evidence to support all three of the

challenged findings justifying termination of appellant's parental rights under section 161.001 of

the Family Code, we affirm the trial court's decree.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: July 27, 2000

Publish

1. The decree also terminated the parental rights of Eliazar Leal, the children's father, who

subsequently died. On motion of Mr. Leal's counsel, this Court dismissed his appeal.

2. Several courts have noted that "'highly probable' is merely a synonym for 'clear and

convincing.'" Spangler v. Texas Dep't of Protective & Regulatory Servs. , 962 S.W.2d 253, 257

(Tex. App.--Waco 1998, no pet.); Edwards v. Texas Dep't of Protective & Regulatory Servs. , 946

S.W.2d 130 , 137 n. 1 (Tex. App.--El Paso 1997, no writ); In re L.R.M. , 763 S.W.2d 64, 66 (Tex.

App.--Fort Worth 1989, no writ).

3. The interview--conducted by Cynthia Cantu, a forensic interviewer at the Travis County

Children's Advocacy Center--was played for the jury and admitted into evidence.

4. These programs include: Any Baby Can (stroller); Austin Housing Authority (low-income

housing); Caritas (financial assistance); CCMS (free child care); DayGlo (classes for parents of

sexually abused children); Department of Protective and Regulatory Services (housecleaning

lessons); Early Childhood Education (assistance to children with special educational needs); Early

Childhood Intervention Program (assistance to children with special needs); Easter Seals (therapy

for C.J.L.); Infant Parent Program (work with E.R.L.); Integrated Mental Health (therapy for Ms.

Leal); Mental Health-Mental Retardation (child care); Michael Fund of Brackenridge Hospital

(financial assistance with medical bills); Parents Anonymous (parenting classes); Pilot Parent

(developmental work with children with special needs); Pride Program of Round Rock (home

visits for developmental work with children); Specialty Care Clinic of Brackenridge Hospital

(lessons on nutrition and feeding); Travis County Emergency Program (free meat and cheese); and

WIC (free baby formula and other food).

in such a way that her children would

awaken to find her dead, Ms. Leal jeopardized the emotional well-being of her children. As with

the medication, Ms. Leal exposed the children to a threat of loss and thus endangered them. See

id . In neither instance did Ms. Leal perceive the possible harm or danger, even after the fact.

She failed to supervise the children, keep them clean and fed, or see to their educational

requirements. She placed inappropriate burdens on her young children and transferred important

duties to them that were her responsibility. We hold that a reasonable jury could have found by

clear and convincing evidence that Ms. Leal's conduct endangered the physical or emotional well-being of the children.

Many of the facts already recited also support the finding that Ms. Leal knowingly

placed or knowingly allowed her children to remain in conditions that endangered their well-being. The record reflects that the Leal home was shockingly unsanitary, evidenced by spoiled

food and insects on many of the interior surfaces. There was also a strong odor of urine and feces

in the house. A number of witnesses characterized the home as unsafe. For example, the CASA

worker testified that she slipped on mayonnaise and ketchup when she walked in the door.

Several witnesses also testified about piles of garbage in the house and in the yard. We hold that

a reasonable jury could have found by clear and convincing evidence that these conditions created

surroundings that endangered the physical or emotional well-being of the children.

After careful review, we are persuaded that the record contains clear and

convincing evidence exists that is legally and factually sufficient to support the jury's findings that

Ms. Leal: (1) engaged in conduct or knowingly placed the children with persons who engaged in

conduct that endangered the children's physical or emotional well-being; and (2) allowed them to

remain in conditions and surroundings that endangered their physical or emotional well-being.

Either of these grounds alone support termination when coupled with the finding that termination

is in the children's best interest. We overrule points of error one through four.

CONCLUSION

Because there is legally and factually sufficient evidence to support all three of the