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In re A.M.

Court of Appeals of Texas, Seventh District, Amarillo

September 21, 2017

IN THE INTEREST OF A.M., A CHILD

         On Appeal from the 100th District Court Collingsworth County, Texas Trial Court No. 8001, Honorable Stuart Messer, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         R.M., mother of A.M., appeals the order terminating her parental rights. She contends that the evidence is neither legally nor factually sufficient to support the two statutory grounds for termination found by the trial court. Nor does it allegedly support the finding that termination is in the best interest of A.M. We affirm.

         Standard of Review - Statutory Ground

         The trial court found the evidence to be clear and convincing on grounds D and E of § 161.001(b)(1) of the Texas Family Code. We need only find that one ground was sufficiently supported by the evidence to affirm the termination of R.M.'s parental rights. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Furthermore, the standard by which we review the order is that discussed in In re K.M.L, 443 S.W.3d 101, 112-13 (Tex. 2014), In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002), and In re B.P., No. 07-14-00037-CV, 2014 Tex.App. LEXIS 8127, at 8-10 (Tex. App.-Amarillo July 25, 2014, pet. denied) (mem. op.).

         Here, we conclude that the evidence supported termination under § 161.001(b)(1)(D) of the Family Code. That provision allows a trial court to order termination when the parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings endangering the physical or emotional well-being of the child. See Tex. Fam. Code Ann. § 161.001 (b)(1)(D) (West Supp. 2016).

         To endanger means to expose to loss or injury or to jeopardize. In re H.L, No. 07-17-00070-CV, 2017 Tex.App. LEXIS 6533, at *13 (Tex. App.-Amarillo July 13, 2017, no pet.) (mem. op.). That requires more than a threat of metaphysical injury or potential ill effects of a less-than-ideal family environment. In re N.M., No. 07-17-00003, 2017 Tex.App. LEXIS 4466, at *4 (Tex. App.-Amarillo May 16, 2017, pet. denied) (mem. op.) (per curiam). Yet, inappropriate, abusive, or unlawful conduct of the parent or of another who lives in the child's home may create an environment that endangers the physical and emotional well-being of a child. In re R.S.-T., No. 04-16-00724-CV, 2017 Tex.App. LEXIS 4486, at *36 (Tex. App.-San Antonio May 17, 2017, no pet.). Examples of such an environment include one in which the parent or caregiver engages in illegal drug use. See In re T.B., No. 07-12-00538-CV, 2013 Tex.App. LEXIS 6728, at *15 (Tex. App.-Amarillo May 31, 2013, no pet.) (mem. op.). And, one instance of endangerment suffices. See In re R.S.-T, 2017 Tex.App. LEXIS 4486, at *36.

         Furthermore, satisfying the mens rea element of the statute does not require proof that the parent knew "for certain" that the child was in an endangering environment; it need only be shown that the parent was aware of the potential for endangering the child created by the environment and disregarded the risk. See In re M.T.C., No. 04-16-00548-CV, 2017 Tex.App. LEXIS 1257, at *7-8 (Tex. App.-San Antonio, Feb. 15, 2017, no pet.) (mem. op.); In re T.B., 2013 Tex.App. LEXIS 6728, at *14.

         The record before us contains evidence of R.M. and her mother being found unconscious atop household furniture while A.M., a fifteen-month-old toddler, walked about the area. Pill bottles and medications were within the area and reach of the child. This circumstance was witnessed by a worker for Early Childhood Intervention Services. The latter person then contacted the local sheriff. When the sheriff arrived, he also found R.M. and her mother unconscious, and took pictures of the two as they slept. Though they would rouse momentarily, they soon returned to unconsciousness. The sheriff contacted Children's Protective Service (CPS) and emergency medical services.

         Investigation led to the discovery of hydrocodone and like opioids in R.M.'s body. R.M. would later attempt to explain the incident as her reaction to NyQuil taken due to a bout with the flu, however. Yet, she consumed the substance at 9 a.m., knew it would cause her to sleep, and remained semi-unconscious or asleep for well into the mid-afternoon. When asked how she intended to watch her child while under the influence of the medicine, R.M. responded that the toddler was also asleep. In other words, her plan was to hope that the child slept through the day as well; yet, that did not happen. At the very least, this evidence indicates that R.M. was aware of the need to supervise the child but nevertheless took the medicine knowing of its likely effect without instituting a viable manner of caring for the fifteen month old. The simplistic plan went awry when the child awoke long before either R.M. or the child's grandmother. This left the child free to wander unsupervised through an area strewn with medicine and pills.

         The events resulted in the indictment of R.M. for the crime of child endangerment. She pled guilty, had the adjudication of her guilt deferred, and received five years of probation.

         Apparently NyQuil was not the only substance affecting R.M. at the time. She was also taking Ambien to help her sleep, Tylenol 4 (i.e., acetaminophen and codeine) to help her live with knee pain, and Buspirone or Ativan for anxiety.

         Evidence further illustrated that, six weeks earlier, R.M. was discharged from the Wellington Pain Clinic for violating her "pain contract." Apparently, she had given away pills prescribed to her and solicited "controlled substances" in place of her regular medications. Pain medication no longer being available ...


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