in the Interest of A.B. and K.B.

• Court: Court of Appeals of Texas
• Decided: August 13, 2015
• Docket: 09-15-00135-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________

NO. 09-15-00135-CV ____________________

IN THE INTEREST OF A.B. AND K.B. ___________________________________________________________________

On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. C-220,202 ___________________________________________________________________

MEMORANDUM OPINION

The trial court terminated appellant’s parental rights to A.B. and K.B. In this

accelerated appeal, appellant presents five issues challenging the legal and factual

sufficiency of the evidence. See Tex. Fam. Code Ann. § 263.405 (West 2014). We

affirm the trial court’s order of termination.

Background

The Texas Department of Protective and Regulatory Services (“the

Department”) removed A.B. and K.B. from their parents’ care in February 2014.

C.B., the children’s mother, testified that she and appellant had both used drugs

before the children were born and that, several years later, they both relapsed

1 shortly before the children’s removal. She testified that the relapse lasted

approximately twelve days. She testified that drugs were used in the home. The

record also demonstrates that appellant had been convicted of driving while

intoxicated in 2012. C.B. testified that appellant has been arrested about five times.

C.B. also testified to a violent relationship with appellant, which included

police involvement and instances when appellant physically harmed her, waved a

gun around, and placed a gun in his mouth and to his head. C.B. testified that the

children sometimes witnessed the physical abuse. According to C.B., the children

were asleep in the home during one instance when appellant hit her, kicked her,

and threw furniture. C.B. suffered internal bleeding, a concussion, and bruised ribs.

C.D. had also seen appellant hit his brother. She testified that the violence lasted

approximately five years, but that appellant was never violent toward the children

and she did not believe the children were impacted by having witnessed any abuse.

C.B. testified that appellant had since changed, she had seen him control his

temper, and he had lived with C.B. and her husband for about a month. She

testified that appellant is a good father when he is sober and she did not believe his

parental rights should be terminated. C.B. testified that appellant has two other

children who reside with their mother and step-father and that appellant supports

these children financially.

2 Lynda Porter, a foster care worker, testified that appellant was arrested for

aggravated assault after the children’s removal and had tested positive for drug use

both before and after the removal. According to Porter, appellant had been staying

at a hotel using drugs, left the hotel out of fear he was being pursued by the Aryan

Nation, and went to a McDonald’s drive-through with a knife in his hand, which

led to his arrest for aggravated assault. She testified that appellant failed to

complete counseling and a psychological exam. Further, appellant failed to provide

Porter with proof of attending Alcoholics Anonymous and Narcotics Anonymous

meetings. Porter believed appellant needed drug treatment and she testified that she

would have helped appellant find a treatment center had he sought her help.

Porter also testified that appellant failed to obtain and maintain safe and

stable housing. According to Porter, appellant had lived in several locations and

was living in a shop the last time Porter spoke with him. The shop doubled as a

recording studio and detailing business. Porter testified that a shop was not an

appropriate place for children to live. She testified that appellant received social

security disability and performed odd jobs.

C.B. testified that the children seem happy in their current placement, but

she also observed a sense of pain, loss, or insecurity and she believed that the

children did not understand the situation. According to Porter, the children are

3 doing well in school and have a good relationship with their foster parents. She

testified that a maternal cousin, paternal uncle, and the foster parents all expressed

interest in being a permanent placement for the children. Porter testified that the

children love their parents and look forward to seeing them. However, Porter

explained that appellant’s drug use and violent behavior endangered the children’s

physical and emotional well-being. She testified that children need permanency

and that A.B. and K.B. had not been in a safe and stable environment for several

years; thus, she believed termination to be in the children’s best interest.

The trial court found that appellant: (1) knowingly placed or knowingly

allowed the children to remain in conditions or surroundings which endangered

their physical or emotional well-being; (2) engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangered their

physical or emotional well-being; (3) failed to comply with the provisions of a

court order that specifically established the actions necessary for appellant to

obtain the children’s return; and (4) used a controlled substance in a manner that

endangered the children’s health or safety and failed to complete a court-ordered

substance abuse treatment program or continued abusing a controlled substance

after completing court-ordered treatment. The trial court found termination to be in

the children’s best interest.

4 Legal and Factual Sufficiency

In issues one through five, appellant contends that the evidence is legally

and factually insufficient to support the trial court’s findings that (1) termination is

proper under Texas Family Code section 161.001(1)(D), (E), (O), and (P); and (2)

termination was in the children’s best interest. See Tex. Fam. Code Ann. § 161.001

(West 2014). Under legal sufficiency review, we review all the evidence in the

light most favorable to the finding to determine whether “a reasonable trier of fact

could have formed a firm belief or conviction that its finding was true.” In the

Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could and

we disregard all evidence that a reasonable factfinder could have disbelieved or

found to have been incredible. Id. If no reasonable factfinder could form a firm

belief or conviction that the matter which must be proven is true, the evidence is

legally insufficient. Id.

Under factual sufficiency review, we must determine whether the evidence

is such that a factfinder could reasonably form a firm belief or conviction about the

truth of the Department’s allegations. Id. We give due consideration to evidence

that the factfinder could reasonably have found to be clear and convincing. Id. We

consider “whether disputed evidence is such that a reasonable factfinder could not

5 have resolved that disputed evidence in favor of its finding.” Id. “If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient.” Id.

The decision to terminate parental rights must be supported by clear and

convincing evidence, i.e., “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 allegations

sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2014); In the

Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the

parent committed one or more predicate acts or omissions and that termination is in

the child’s best interest. See Tex. Fam. Code Ann. § 161.001; see also J.L., 163

S.W.3d at 84. A judgment will be affirmed if any one of the grounds is supported

by legally and factually sufficient evidence and the evidence supporting the best

interest finding is also supported by legally and factually sufficient evidence. In the

Interest of C.A.C., No. 09-10-00477-CV, 2011 Tex. App. LEXIS 3385, at *2 (Tex.

App.—Beaumont May 5, 2011, no pet.) (mem. op.).

Section 161.001(1)(D) allows for termination if the trial court finds by clear

and convincing evidence that the parent has “knowingly placed or knowingly

6 allowed the child to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §

161.001(1)(D). The “endangerment analysis focuses on the evidence of the child’s

physical environment, although the environment produced by the conduct of the

parents bears on the determination of whether the child’s surroundings threaten his

well-being.” Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st

Dist.] 2010, pet. denied). The trial court may consider parental conduct both before

and after the child’s birth. Id. Regarding the children’s best interest, we consider a

non-exhaustive list of factors: (1) desires of the child; (2) emotional and physical

needs of the child now and in the future; (3) emotional and physical danger to the

child now and in the future; (4) parental abilities of the individuals seeking

custody; (5) programs available to assist these individuals to promote the best

interest of the child; (6) plans for the child by these individuals or by the agency

seeking custody; (7) stability of the home or proposed placement; (8) acts or

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

relationship is not proper; and (9) any excuse for the acts or omissions of the

parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam.

Code. Ann. § 263.307(b) (West 2014).

7 In this case, the trial court heard evidence that appellant had not only been

violent toward C.B., the mother of his children, but had also exhibited violent

conduct toward his own brother. One violent episode led to C.B. suffering severe

injuries. Additionally, appellant had engaged in conduct that suggested an intention

to harm himself. The trial court heard C.B. testify that the children had either been

present in the home when some of the abuse occurred or had observed the abuse.

The trial court could consider appellant’s abusive and violent conduct, as well as

his threats of self harm, as creating an environment that endangered the children’s

physical or emotional well-being. See In the Interest of R.W., 129 S.W.3d 732, 739

(Tex. App.—Fort Worth 2004, pet. denied); see also In the Interest of J.T.G., 121

S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).

The evidence also demonstrates that appellant participated in illegal drug use

both before and after the children’s removal. Drugs were used in the home where

the children lived, and the children were exposed to appellant when he used drugs.

Even after the children’s removal, appellant tested positive for illegal narcotics.

Illegal drug use can create an environment that endangers a child’s physical and

emotional well-being. R.W., 129 S.W.3d at 739.

Additionally, the trial court could consider appellant’s conduct subjecting

the children to a life of uncertainty and instability. See In the Interest of M.R.J.M.,

8 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.). The record

demonstrates that appellant lived in different locations in the months before trial

and was living in a shop as of Porter’s last conversation with appellant. Porter

opined that appellant had not established safe and stable housing for the children.

Evidence that appellant was arrested numerous times in the past, convicted of

driving while intoxicated in 2012, and arrested for aggravated assault after the

children’s removal is likewise relevant to whether he engaged in a course of

conduct that endangered the children. See In the Interest of S.R., 452 S.W.3d 351,

360-61 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

Under these circumstances, the trial court could reasonably conclude that

appellant’s conduct created an environment that endangers the children’s physical

and emotional well-being and could infer from his past endangering conduct that

similar conduct would recur if the children were returned to appellant. See

M.R.J.M., 280 S.W.3d at 502; see also J.T.G., 121 S.W.3d at 125. The trial court

could reasonably have formed a firm belief or conviction that appellant knowingly

placed or knowingly allowed the children to remain in conditions or surroundings

which endangered their physical or emotional well-being. See Tex. Fam. Code

Ann. § 161.001(1)(D).

9 Regarding the children’s best interest, the record does not indicate that the

children informed the trial court of their desires. The trial court heard evidence that

the children are doing well in school and in general, and that family members and

the foster parents were interested in adopting the children. The trial court heard

evidence that appellant’s violent past, criminal history, lack of stable housing, and

untreated drug use had created an endangering environment for the children and

that termination would provide the children with permanency in an adoptive home.

“[T]he prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest.” Tex. Fam. Code Ann. § 263.307(a). As

the sole judge of the witnesses’ credibility and the weight to be given their

testimony, the trial court could reasonably conclude that appellant was unable to

provide such an environment for A.B. and K.B. The trial court could reasonably

have formed a firm belief or conviction that termination of appellant’s parental

rights was in the children’s best interest. See id. §§ 161.001(2), 263.307(a), (b); see

also J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72.

Accordingly, we conclude that the Department established, by clear and

convincing evidence, that appellant committed the predicate act enumerated in

section 161.001(1)(D) and that termination is in the children’s best interest. See

Tex. Fam. Code Ann. § 161.001. We overrule issues one and five and need not

10 address issues two, three, and four regarding section 161.001(E), (O), and (P). See

C.A.C., 2011 Tex. App. LEXIS 3385, at *2; see also Tex. R. App. P. 47.1. We

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on June 23, 2015 Opinion Delivered August 13, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.