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Smith v. Texas Department of Protective and Regulatory Services9/11/2003
ther-in-law Beulah Smith because she was told her home was not fit. When she discovered that her youngest daughter required the use of an apnea monitor, which had to be hooked up to a phone line, she returned to her trailer with the children because Beulah's home did not have a phone line. Bobbie had maintained a phone line at her trailer because her father-in-law was staying on the premises to repair the trailer. Bobbie testified that she intended to stay at the trailer only for a few days until a phone line could be hooked up at Beulah's. She also testified that before returning to the trailer, Bobbie called Harris to inform her that she would be returning to the trailer temporarily. (Although Harris confirmed that Bobbie indeed called her to tell her about the apnea monitor, she disputes that Bobbie told her she was living with Beulah and would be returning to the trailer for a few days.) It was during this temporary stay that the Department removed the children.
After the children were removed, Bobbie embarked on a remodeling effort. She testified that all the floors were remodeled; new carpet was installed in every bedroom; tile was installed in the hallway, bathroom, and kitchen; windows were replaced; and everything was generally cleaned up. With the help of her father-in-law, she made most of the repairs, and Carlos finished them when he was released from the intermediate sanction facility. Bobbie provided pictures of the newly remodeled home for the jury. She also testified that a fire and health inspection was done, but had no documentary evidence to prove it. When the Smiths learned that the repairs to the house were insufficient, they moved into a Section 8 apartment; that is, one subsidized by the State.
Carlos testified that just before he was sent to Llano County jail and then to the intermediate sanction facility, he, Bobbie, and the children had been living in a house. After the roof fell in at that house, the family moved to the trailer. Shortly after the move, Carlos was incarcerated. He testified that he was not very familiar with the conditions of the trailer because he was incarcerated just after they moved into it. When he was released, however, he finished repairing it.
While the testimony at trial establishes that the family was living in a less than ideal environment, it does not rise to the level of clear and convincing evidence sufficient to establish endangerment to the well-being of the five children. There is no evidence that the children were malnourished or that conditions in the trailer were so unsanitary or inadequate so as to threaten the children's health. Cf. In re M.C., 917 S.W.2d at 270. Moreover, the Smiths resolved their living conditions by moving into a state-subsidized apartment. Accordingly, we hold the evidence is factually insufficient to establish a violation of section 161.001(1)(D) of the family code.
Dangerous conduct
Section 161.001(1)(E) provides that a parent's rights may be terminated if it is established by clear and convincing evidence that the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(1)(E). Under subsection (E), we look to the parents' conduct alone, including actions, omissions, or the parents' failure to act. In re D.M., 58 S.W.3d 801, 811 (Tex. App.--Fort Worth 2001, no pet.). The endangering acts need not have been directed at the child, or have caused an actual injury or threat of injury to the child; the parent need only have engaged in a course of conduct that endangered the child's physical or emotional well-being. Id. Termination under thi
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