COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00394-CV
In the Interest of A.N.D., Minor Child § From the 235th District Court
§ of Cooke County (11-00124)
§ January 31, 2013
§ Opinion by Justice Meier
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s order. It is ordered that the order of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________ Justice Bill Meier COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
IN THE INTEREST OF A.N.D., MINOR CHILD
----------
FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant B.A. (Father) appeals the trial court’s order terminating his
parental rights to his daughter, A.N.D. In five issues, Father challenges the trial
court’s family code section 161.001(1) and (2) findings. We will affirm.
II. BACKGROUND
Father dated D.T. (Mother) for thirty to forty-five days in 2009. Mother
learned that she was pregnant with A.N.D. after the relationship with Father had
1 See Tex. R. App. P. 47.4.
2 ended. Father was incarcerated when he learned that Mother was pregnant and
when A.N.D. was born in July 2010.
Appellee Department of Family and Protective Services (DFPS) became
involved in Mother’s and A.N.D.’s lives after receiving a referral in November
2010 that alleged neglectful supervision of then three-month-old A.N.D. by
Mother. Several months later, in March 2011, DFPS removed A.N.D. from
Mother’s care because Mother had been arrested and an appropriate caregiver
for A.N.D. could not be located. DFPS subsequently filed its original petition for
protection of a child, for conservatorship, and for termination in this suit affecting
the parent-child relationship.
Father remained incarcerated throughout the pendency of A.N.D.’s case,
including during the final termination bench trial in August 2012. The trial court
ultimately found by clear and convincing evidence that termination of Father’s
parental rights to A.N.D. was appropriate pursuant to family code subsections
161.001(1)(E), (N), (O), and (Q) and that termination was in A.N.D.’s best
interest. See Tex. Fam. Code Ann. § 161.001(1)(E), (N), (O), (Q), & (2) (West
Supp. 2012). The interlocutory order terminating Father’s parental rights became
final when the trial court signed a final order terminating the parent-child
relationship between Mother and A.N.D. pursuant to Mother’s affidavit of
relinquishment. Father appeals.
3 III. DISPOSITIVE ISSUES
In his first issue, Father argues that the evidence is legally and factually
insufficient to support the trial court’s finding that terminating his parental rights to
A.N.D. is in her best interest. In his second issue, Father argues that the trial
court “erred” by finding that termination was appropriate under family code
subsection 161.001(1)(E).2
A. Burden of Proof and Standard of Review
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a) (West 2008). Evidence is
clear and convincing if it “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.” Id.
§ 101.007 (West 2008).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We consider evidence favorable to termination if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could
not. Id.
2 We construe this argument as a challenge to the legal and factual sufficiency of the evidence to support the finding.
4 In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated section 161.001(1) and that termination of the parent-child
relationship would be in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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 in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Endangerment Finding
The trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangers
the physical or emotional well-being of the child. Tex. Fam. Code Ann.
§ 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical or emotional well-being was
the direct result of the parent’s conduct, including acts, omissions, and failures to
act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Termination under subsection (E) must be based on more than a single act
or omission; a voluntary, deliberate, and conscious course of conduct by the
5 parent is required. Id.; In re D.T., 34 S.W.3d 625, 634 (Tex App.—Fort Worth
2000, pet. denied). As a general rule, conduct that subjects a child to a life of
uncertainty and instability endangers the child’s physical and emotional well-
being. In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet.
denied). To support a finding of endangerment, the parent’s conduct does not
necessarily have to be directed at the child, and the child is not required to suffer
injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The specific danger to the child’s well-being may be inferred from parental
misconduct alone, and to determine whether termination is necessary, courts
may look to parental conduct both before and after the child’s birth. Id.; In re
D.M., 58 S.W.3d 801, 812–13 (Tex. App.—Fort Worth 2001, no pet.). A
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00394-CV
In the Interest of A.N.D., Minor Child § From the 235th District Court
§ of Cooke County (11-00124)
§ January 31, 2013
§ Opinion by Justice Meier
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s order. It is ordered that the order of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________ Justice Bill Meier COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
IN THE INTEREST OF A.N.D., MINOR CHILD
----------
FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant B.A. (Father) appeals the trial court’s order terminating his
parental rights to his daughter, A.N.D. In five issues, Father challenges the trial
court’s family code section 161.001(1) and (2) findings. We will affirm.
II. BACKGROUND
Father dated D.T. (Mother) for thirty to forty-five days in 2009. Mother
learned that she was pregnant with A.N.D. after the relationship with Father had
1 See Tex. R. App. P. 47.4.
2 ended. Father was incarcerated when he learned that Mother was pregnant and
when A.N.D. was born in July 2010.
Appellee Department of Family and Protective Services (DFPS) became
involved in Mother’s and A.N.D.’s lives after receiving a referral in November
2010 that alleged neglectful supervision of then three-month-old A.N.D. by
Mother. Several months later, in March 2011, DFPS removed A.N.D. from
Mother’s care because Mother had been arrested and an appropriate caregiver
for A.N.D. could not be located. DFPS subsequently filed its original petition for
protection of a child, for conservatorship, and for termination in this suit affecting
the parent-child relationship.
Father remained incarcerated throughout the pendency of A.N.D.’s case,
including during the final termination bench trial in August 2012. The trial court
ultimately found by clear and convincing evidence that termination of Father’s
parental rights to A.N.D. was appropriate pursuant to family code subsections
161.001(1)(E), (N), (O), and (Q) and that termination was in A.N.D.’s best
interest. See Tex. Fam. Code Ann. § 161.001(1)(E), (N), (O), (Q), & (2) (West
Supp. 2012). The interlocutory order terminating Father’s parental rights became
final when the trial court signed a final order terminating the parent-child
relationship between Mother and A.N.D. pursuant to Mother’s affidavit of
relinquishment. Father appeals.
3 III. DISPOSITIVE ISSUES
In his first issue, Father argues that the evidence is legally and factually
insufficient to support the trial court’s finding that terminating his parental rights to
A.N.D. is in her best interest. In his second issue, Father argues that the trial
court “erred” by finding that termination was appropriate under family code
subsection 161.001(1)(E).2
A. Burden of Proof and Standard of Review
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a) (West 2008). Evidence is
clear and convincing if it “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.” Id.
§ 101.007 (West 2008).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We consider evidence favorable to termination if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could
not. Id.
2 We construe this argument as a challenge to the legal and factual sufficiency of the evidence to support the finding.
4 In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated section 161.001(1) and that termination of the parent-child
relationship would be in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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 in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Endangerment Finding
The trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangers
the physical or emotional well-being of the child. Tex. Fam. Code Ann.
§ 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical or emotional well-being was
the direct result of the parent’s conduct, including acts, omissions, and failures to
act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Termination under subsection (E) must be based on more than a single act
or omission; a voluntary, deliberate, and conscious course of conduct by the
5 parent is required. Id.; In re D.T., 34 S.W.3d 625, 634 (Tex App.—Fort Worth
2000, pet. denied). As a general rule, conduct that subjects a child to a life of
uncertainty and instability endangers the child’s physical and emotional well-
being. In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet.
denied). To support a finding of endangerment, the parent’s conduct does not
necessarily have to be directed at the child, and the child is not required to suffer
injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The specific danger to the child’s well-being may be inferred from parental
misconduct alone, and to determine whether termination is necessary, courts
may look to parental conduct both before and after the child’s birth. Id.; In re
D.M., 58 S.W.3d 801, 812–13 (Tex. App.—Fort Worth 2001, no pet.). A
factfinder may also infer from past conduct endangering the well-being of the
child that similar conduct will recur if the child is returned to the parent. See In re
D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved
on other grounds by In re J.F.C., 96 S.W.3d 256, 267 (Tex. 2002).
Texas courts have recognized that criminal activity that exposes a parent
to incarceration may be relevant to establish conduct that endangers the
emotional and physical well-being of a child. Boyd, 727 S.W.2d at 533–34; In re
M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.); In re K.M.M.,
993 S.W.2d 225, 227–28 (Tex. App.—Eastland 1999, no pet.). But mere
imprisonment will not, standing alone, constitute engaging in conduct that
endangers the emotional or physical well-being of a child. Boyd, 727 S.W.2d at
6 533–34. “[I]f the evidence, including the imprisonment, shows a course of
conduct which has the effect of endangering the physical or emotional well-being
of the child, a finding” of endangerment under section 161.001(1)(E) is
supportable. Id.
The record demonstrates that Father has a lengthy history of engaging in
primarily drug-related criminal activity for which he has ultimately been convicted
and punished. Father’s criminal history includes (1) a 2011 conviction and three-
year sentence for burglary of a habitation, (2) a 2004 conviction and ten-year
sentence for possession of cocaine, (3) a 2002 conviction and five-year sentence
for possession of cocaine, (4) a 2002 conviction and 180-day sentence for
possession of cocaine, and (5) a 1998 conviction for possession of cocaine.
Father was incarcerated at all times relevant to this case—when he learned that
Mother was pregnant, when A.N.D. was born, during A.N.D.’s DFPS case, and at
the time of trial. His criminal history evidences a deliberate and continuing
course of possessing illegal, controlled substances—conduct that has exposed
him to incarceration on several occasions. Consequently, the trial court could
have reasonably concluded that this course of conduct, and his imprisonment,
negatively affected his ability to financially, physically, and emotionally care for
A.N.D. Accordingly, we hold that the evidence is legally and factually sufficient to
show that Father engaged in conduct that endangered the physical or emotional
well-being of A.N.D. We overrule Father’s second issue. Having overruled
Father’s second issue, we need not address his third, fourth, and fifth issues
7 challenging the sufficiency of the evidence to support the trial court’s subsection
161.001(1)(N), (O), and (Q) findings. See Tex. R. App. P. 47.1; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005) (stating that parent must have committed only one of
the acts prohibited under family code section 161.001(1) for termination of her
parental rights).
C. Best Interest
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008)
(listing factors that should be considered in evaluating the parent’s willingness
and ability to provide the child with a safe environment). Nonexclusive factors
that the trier of fact in a termination case may use in determining the best interest
of the child include: (A) the desires of the child; (B) the emotional and physical
needs of the child now and in the future; (C) the emotional and physical danger
to the child now and in the future; (D) the parental abilities of the individuals
seeking custody; (E) the programs available to assist these individuals to
promote the best interest of the child; (F) the plans for the child by these
individuals or by the agency seeking custody; (G) the stability of the home or
proposed placement; (H) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a proper one; and (I) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
8 72 (Tex. 1976). These factors are not exhaustive; some listed factors may be
inapplicable to some cases, and other factors not on the list may also be
considered when appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed
evidence of just one factor may be sufficient in a particular case to support a
finding that termination is in the best interest of the child. Id. On the other hand,
the presence of scant evidence relevant to each factor will not support such a
finding. Id. The same evidence of acts or omissions used to establish grounds
for termination under section 161.001(1) may be probative in determining the
best interest of the child. Id. at 28.
Father has never met A.N.D. He testified that he is currently unable to
care for A.N.D., that he wanted his mother (P.F.) to care for A.N.D., and that he
planned to work on an oil rig after his release from prison. DFPS performed a
home study of P.F. but declined to place A.N.D. with her. P.F. acknowledged
that DFPS had removed two of her grandchildren from her care in 1997;
according to A.N.D.’s caseworker, Darless Collins, DFPS determined that “some
severe forms of discipline were used in the home on both her own children and
her grandchildren.” Collins testified that she had concerns about Father’s
extensive history with drugs, that Father had not maintained significant contact
with A.N.D., and that she had no indication that Father could provide A.N.D. with
a safe home or with any support.
9 Collins explained that A.N.D. had been in a foster home since her removal
and that
[s]he’s doing really, really well there. She has bonded to the foster family, their children, their extended family. She has bonded to her sibling, who was briefly placed in that same home. She has no ongoing issues. They’ve been very diligent about her, her health, her dental care. She did have to have some ECI. An ECI program that she was working, that they took care of that. And then she was dismissed from that program. So she’s doing very well there.
Collins opined that all of A.N.D.’s needs were being met and said that DFPS’s
recommendation for A.N.D. was that she be placed with the foster family long
term.
Viewing the evidence under the appropriate standards, we hold that the
evidence is both legally and factually sufficient to support the trial court’s finding
that termination of Father’s parental rights to A.N.D. is in her best interest. We
overrule Father’s first issue.
IV. CONCLUSION
Having overruled Father’s two dispositive issues, we affirm the trial court’s
order terminating Father’s parental rights to A.N.D.
BILL MEIER JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DAUPHINOT, J., concurs without opinion.
DELIVERED: January 31, 2013