November 01, 2012

Deportation and Prior Unknown Crime Insufficient for Endangerment

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re E.N.C., 2012 WL 4840710 (Tex.).

The Texas Supreme Court held that facts that father had previously been convicted of a crime somehow involving an inappropriate relationship with a minor, years before he had children, and that he was deported, were insufficient to show he endangered his children. Nothing showed how these factors put the children in any imminent danger.

A father and mother were married in the United States and had two children. Sometime after they separated, the father was deported to Mexico. One of the factors leading to his deportation was that he had, years earlier, been placed on probation for having an inappropriate relationship with a minor and violated his probation by moving without permission. After being deported, the father provided financial support to the children and they visited him in Mexico twice. His father also often visited them and brought them clothing that the father provided.

The mother was later found to have neglected the children due to abusing over-the-counter medications and driving under the influence with her child in the car.

When the children entered care, the father was allowed monthly telephone visitation. The agency reported at the termination trial that he maintained these phone calls and they were positive. His father continued to visit in person.

The agency filed a petition to terminate parental rights of both parents.

At the hearing, the caseworker testified that she did not know the nature of the criminal offense except that it allegedly involved an unlawful relationship with a minor. She testified that the father did not pay support when the children were in foster care. The worker testified they did not complete a service plan because the father had been deported to Mexico. The caseworker and CASA noted that the father would not be allowed to return to the U.S. for a minimum of 10 years and recommended termination.

The GAL recommended against termination. The only other evidence of the father’s prior conviction was from his testimony. He indicated he had been charged because his girlfriend was underage.  

Both parents rights’ were terminated by the trial court on the ground they had endangered their children by exposing them to an injurious environment.

The father appealed and the case ultimately went to the Texas Supreme Court.

On appeal the court stated that proof that a child was endangered requires more than a vague threat or potential harm from a less-than-ideal environment.

The court noted that while the prior conviction and deportation were appropriate factors to consider in the case, the record did not support a clear and convincing belief that the father endangered the children. The record did not indicate whether father’s offense was an inappropriate relationship with a 21 year old and a 17 year old or a 21 year old and a younger child. The trial court essentially assumed the worst case scenario without evidence to support it. The father was never cross-examined about the incident.

Deportation was also an appropriate factor to consider, but there was nothing about the circumstances in this case that showed endangerment. While deportation can practically prevent parents from caring for their children, it is insufficient in and of itself to warrant termination. Here, the undisputed testimony indicated the father’s deportation did not prevent him from continuing to support his children financially or maintain contact with them.

As to best interests, little evidence was offered to show how placement with the father would be contrary to the children’s best interests. They were not estranged from him, and he had maintained regular contact until the foster parents stopped it. His extended family remained involved. The father had stable employment at a hotel, and no evidence suggested he had neglected his other two children. While some testimony implied the children would have a higher standard of living if they remained in the U.S., that was not an appropriate consideration in a best interests analysis.

The agency also seemed to imply that father failed to protect his children from the neglect by the mother, but this assertion lacked any basis in the record. The agency’s records indicated there were no allegations during the time the father was in the U.S. and nothing else indicated that he was aware of the substance abuse problems she had.

Based on the above, the Texas Supreme Court reversed the termination order.