June 01, 2013

Prostitution in Home Put Children at Risk Even if They Were Not Witnesses

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 N.K., 2013 WL 1197803 (Tex. App.).

Where mother, husband, and roommate were using their home for prostitution, trial court could conclude that environment was unsafe for children even if they did not observe the behavior. Finding could form basis of termination where mother did not gain significant insight or skills to ensure their safety or well-being by the time of termination.

The family originally came to the attention of the child welfare agency due to reports of unsanitary living conditions and physical abuse. While investigating, the caseworker also received allegations that the father had sexually abused the toddler. However, medical examinations and questioning did not reveal sufficient evidence and the case was closed. 

The agency again became involved six months later after the mother, father, and a roommate were arrested for prostitution, allegedly conducted in the home. Officers had been conducting surveillance of the home after seeing Craigslist postings offering sex for money and had observed several men coming to the home for 10 or 15 minutes. Sometimes, he reported, one of the three housemates would take the children from the home before the men arrived, but he could not confirm whether the children had ever been present. 

During the trial it was revealed the mother had a long history of substance abuse. The father reported a history of drug abuse, sexual victimization, prostitution, and he had been incarcerated approximately 50 times.

Also during the proceedings, the father admitted to having touched the older child sexually on one occasion. He attempted suicide shortly after the confession. He later recanted, contending he made that statement only because he thought the mother could get her children back easier if someone other than her had abused them. The mother testified that she had never seen inappropriate contact between the father and the children. 

The older child, even at three, was very aggressive. She would bite, hit, scratch, kick, and growl at counselors, teachers, and other children. She displayed sexualized behaviors and was diagnosed with Post-Traumatic Stress Disorder. A few foster home placements had disrupted due to these behaviors. 

After nine months, the agency filed for termination of parental rights. The trial court found clear and convincing evidence that the parents had failed to correct the conditions that led to care and that termination was in the children’s best interests. The mother appealed. 

The Texas Court of Appeals affirmed. The court noted first that termination is a two-step process; a statutory ground must be proven by clear and convincing evidence, then termination must be in the child’s best interests. 

On appeal the mother challenged the underlying reason for removal, which formed the basis for several grounds. She contended the children were not exposed to prostitution and that they were taken from the home before the clients would arrive. 

The Texas Court of Appeals did not find this persuasive, noting that letting strangers into the home to exchange sex for money put the children at risk even if they had not witnessed the encounters. These individuals, knowing where the family lived, might come to the home at other times. Second, that parents were engaged in a regular criminal activity put the children at risk of being without caregivers in the event of their being incarcerated. Notably, the mother engaged in these activities despite already being on probation for a prior drug charge and having been recently investigated by protective services.

The Court also noted that mother had not fully separated from the father despite his possible sexual abuse and testimony that he is unsafe to be around children for the many reasons that had resulted in his numerous incarcerations. The record also showed that her therapist could not recommend a return to mother’s care given her own recovery and other needs.

The Texas Court of Appeals held the trial court properly found there were grounds to terminate. 

Regarding best interests, the court reviewed how the evidence for the grounds applied to best interests. The court emphasized how the home environment had led to a very young child needing an intensive therapeutic environment and that though the mother had participated in treatment, she had not gained skills or insight to improve her parenting ability. While most of the record dealt with the older child, the court noted there was no reason to think the problems in the home environment would not be similarly harmful to the younger child if she had remained or was returned to the home. 

The court found that the court properly concluded termination was in the children’s best interests.