In the Interest of A.P. and M.P., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 1, 2023
• Docket: 10-22-00328-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00328-CV

IN THE INTEREST OF A.P. AND M.P., CHILDREN

From the 82nd District Court Falls County, Texas Trial Court No. CV41021

MEMORANDUM OPINION

In one issue, appellant, R.P., challenges the trial court’s order terminating her

parental rights to A.P. and M.P.1 We affirm.

Analysis

In her sole issue on appeal, R.P. contends that the trial court’s predicate findings

for termination of her parental rights under subsections 161.001(b)(1)(D), (E), and (O) of

the Texas Family Code are not supported by legally and factually sufficient evidence.2

See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O). We disagree.

1 Neither of the biological fathers of A.P. and M.P. are parties to this appeal.

2 On appeal, R.P. does not challenge the trial court’s best-interest finding. STANDARD OF REVIEW & APPLICABLE LAW

The standards of review for legal and factual sufficiency in cases involving the

termination of parental rights are well established and will not be repeated here. See In

re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002);

see also In re J.F.-G., 612 S.W.3d 373, 381-82 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304

(Tex. 2021). If multiple predicate violations are found by the factfinder, we will affirm

based on any one finding because only one finding is necessary for termination of

parental rights. See In re J.S.S., 594 S.W.3d 493, 503 (Tex. App.—Waco 2019, pet. denied).

Moreover, we give due deference to the factfinder’s findings and must not substitute our

judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The

factfinder is the sole judge “of the credibility of the witnesses and the weight to give their

testimony.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied).

Subsection 161.001(b)(1)(E) of the Texas Family Code provides that a parent's

rights may be terminated if it is found that the parent has “engaged in conduct or

knowingly placed the child with persons who engaged in conduct which endangers the

physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

To “endanger” means to expose to loss or injury, to jeopardize. Tex. Dep't of Human Servs.

v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Under subsection 161.001(b)(1)(E), the relevant

inquiry is whether evidence exists that the endangerment of the child's well-being was

In the Interest of A.P. and M.P., children Page 2 the direct result of the parent's conduct, which includes acts, omissions, or failures to act.

In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied). It is not

necessary, however, that the parent's conduct be directed at the child or that the child

actually suffer injury. Boyd, 727 S.W.2d at 533. The specific danger to the child's well-

being may be inferred from parental misconduct standing alone. Id. In making this

determination, a factfinder court may consider conduct that occurred before and after the

child's birth, in the child's presence and outside the child's presence, and before and after

removal by the Department. In re J.O.A., 283 S.W.3d at 345. A parent's past endangering

conduct may create an inference that the parent's past conduct may recur and further

jeopardize a child's present or future physical or emotional well-being. See In re D.M., 58

S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).

DISCUSSION

Here, the Texas Department of Family and Protective Services (the “Department”)

first got involved in this case after A.P., who was eight years old at the time, told her aunt

that R.P.’s boyfriend, William “Willie” Brooks, sexually abused her. The Department

conducted a forensic interview of A.P. and confirmed the sexual-abuse allegation.

Accordingly, both A.P. and M.P. were removed from R.P.’s home in December 2020.

A criminal investigation of the sexual-abuse allegation followed. At this time, R.P.

insisted that she believed A.P. and that she would end the relationship with Brooks. R.P.

promised the Department that she would “be protective” and that Brooks would not have

In the Interest of A.P. and M.P., children Page 3 any more access to her children. The Department referred R.P. to community services

and closed the case in February 2021.

Less than a month later, in March 2021, Brooks was arrested for the sexual assault

of A.P. At this time, the Department learned that R.P. had not ended her relationship

with Brooks and that R.P. had allowed Brooks to be around A.P. and M.P. again. Olga

Solyakova, an investigator supervisor for the Department, testified that, after the arrest

of Brooks, R.P. no longer believed A.P.’s allegation. As shown in her testimony, R.P.

believes that her sister and her husband coerced A.P. to concoct the story so that A.P.

could live with them. R.P. also denied that Brooks was in her home. However, R.P. later

changed her story to admit that Brooks had been in her home, but that the children were

not there, and that she had recently dropped him off at the hospital because Brooks had

had a heart attack. R.P. also explained that she does not believe that Brooks sexually

abused A.P. because “[she] was there too.” And because she did not believe A.P.’s

allegation of sexual abuse, R.P. went to the police station to try and get the sexual-assault

charge against Brooks dropped.

As part of her investigation, Solyakova spoke with the children. A.P. and M.P.

confirmed that Brooks was living with them. M.P. told Solyakova that Brooks “made

dinner yesterday in the house.” Given this information, the Department removed the

children from R.P.’s home again.

In the Interest of A.P. and M.P., children Page 4 Later in her testimony, Solyakova described her interview of A.P. According to

Solyakova, “[A.P.] stated that Mr. Brooks has licked her vagina, he had put his finger in

his—in her vagina, and that he has tried to hump her clothed (phonetic) and that he has

tried to put his penis in her vagina.” Solyakova also learned that A.P. had been “touched

[] sexually” by R.P.’s cousin, B.N., who is a registered sex offender. B.N. purportedly

digitally penetrated A.P. after R.P. left her and M.P. and B.N.’s care. Solyakova was

unaware of any investigation or charges that were brought against B.N. for the alleged

sexual assault of A.P.

Solyakova also spoke with Brooks at the Falls County Jail. Brooks confirmed that

he and R.P. never broke up and that “he was back in the home and basically to the tune

of ‘I don’t understand what’s going on. These kid’s [sic] love me like I’m their father, and

I have been in their lives . . . .’” Brooks also stated that he had been picking the children

up from school. He denied sexually abusing A.P.

Julie Holley, the primary Department caseworker assigned to R.P., testified that

A.P. and M.P. told her that Brooks was “at the house all the time even after [the case in

December 2020].” Indeed, a review of A.P.’s medical records showed that Brooks took

A.P. to the hospital for strep throat after December 2020, and that Brooks was listed on

the paperwork as the adult responsible for A.P. at that hospital visit. Additionally, the

children informed Holley that they called Brooks “daddy and looked at him as a father

figure.”

In the Interest of A.P. and M.P., children Page 5 Holley also testified about R.P.’s penchant for drug use. R.P. testified positive for

cocaine and marihuana on April 29, 2022, and tested positive for marihuana on May 6,

2022. Furthermore, the record shows that R.P. did not complete all court-ordered drug

tests.

Holley further described the current placement for the children. Although the

initial placement was rough, the children “have made tremendous progress” and are

doing great in school. In Holley’s opinion, A.P. and M.P. “look like they’ve lived there

their entire life.” R.P. was allowed visitation with the children; however, R.P. failed to

visit the children for quite some time, and when she would occasionally visit the children,

Holley noticed that the children “took a turn for the worst.”

The foregoing evidence demonstrates that R.P. knowingly allowed A.P. and M.P.

to be around Brooks, who allegedly sexually assaulted A.P., despite being informed by

the Department that the children could not be around Brooks. See In re O.E.R., 573 S.W.3d

896, 906 (Tex. App.—El Paso 2019, no pet.) (noting that a parent’s choice to continue a

relationship with a violent or abusive partner can create an endangering environment for

children); In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017, no

pet.) (“A child is endangered when the environment creates a potential for danger that

the parent is aware of but disregards.” (citation omitted)); Jordan, 325 S.W.3d at 724

(stating that evidence that a person has engaged in abusive or violent conduct in the past

permits an inference that the person will continue to engage in violent behavior in the

In the Interest of A.P. and M.P., children Page 6 future); In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet. denied)

(“Accordingly, evidence of sexual abuse of one child is sufficient to support a finding of

endangerment with respect to other children.” (citations omitted)); In re A.B., 125 S.W.3d

769, 775 (Tex. App.—Texarkana 2003, pet. denied) (“[S]exual abuse is conduct that

endangers a child’s physical or emotional well-being.”); In re W.S., 899 S.W.2d 772, 776-

77 (Tex. App.—Fort Worth 1995, no writ) (noting that abusive or violent conduct by a

parent or other resident of a child’s home may produce an environment that endangers

the physical or emotional well-being of a child). R.P. also left the children with B.N., a

registered sex offender who also allegedly sexually abused A.P. This evidence shows a

pattern of behavior where R.P. failed to adequately protect her children from abusive and

endangering environments.

And although she initially claimed to believe A.P.’s allegation of sexual abuse

against Brooks, R.P. later disbelieved A.P.’s allegation and pressured law enforcement to

drop the sexual-assault charge against Brooks stemming from the allegation made by

A.P. These actions can also be considered endangering conduct. See K.M. v. Tex. Dep’t of

Family & Protective Servs., 388 S.W.3d 396, 399 (Tex. App.—El Paso 2012, no pet.)

(concluding that a mother’s disbelief and lack of support for a child sexual-abuse victim

constituted endangering conduct); see also In re C.M., No. 10-13-00080-CV, 2013 Tex. App.

LEXIS 11116, at **9-10 (Tex. App.—Waco Aug. 29, 2013, no pet.) (mem. op.) (concluding

that a parent engaged in endangering conduct because “Theresa was not supportive of

In the Interest of A.P. and M.P., children Page 7 C.M. as a sexual abuse victim and did not believe that sexual abuse of C.M. or J.G.

occurred. Theresa was emotionally abusive in trying to get C.M. to recant the allegation

of abuse. Theresa was also unable to adequately protect the children from abuse”).

Moreover, the evidence established that R.P. abuses drugs and missed several

drug tests, both of which endanger the physical and emotional well-being of the children.

See In re J.O.A., 283 S.W.3d at 345 (noting that evidence of drug use may constitute

evidence of endangerment); see also In re G.M., 649 S.W.3d 801, 810 (Tex. App.—El Paso

2022, no pet.) (“A parent’s illegal drug use and its effect on parenting ability may support

the conclusion that a child’s surroundings endanger her physical or emotional well-

being.” (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.))); In

re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied) (noting that it is

reasonable for the factfinder to infer from a parent’s failure to take a drug test that the

parent was using drugs during the proceedings); Cervantes-Peterson v. Tex. Dep’t of Family

& Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(en banc) (stating that continued illegal drug use after a child’s removal is conduct that

jeopardizes parental rights and establishes an endangering course of conduct).

Furthermore, Holley’s testimony showed that R.P. did not regularly participate in

visitation. A parent’s failure to regularly participate in visitation can reasonably be found

to be emotionally endangering to the child’s well-being. See, e.g., In re L.S., No. 10-22-

00119-CV, 2022 Tex. App. LEXIS 6332, at *6 (Tex. App.—Waco Aug. 24, 2022, no pet.)

In the Interest of A.P. and M.P., children Page 8 (citing In re A.F., No. 07-19-00435-CV, 2020 Tex. App. LEXIS 4152, at *17 (Tex. App.—

Amarillo May 29, 2020, pet. denied) (mem. op.)).

Based on our review of the record under the appropriate standards for

determining the legal and factual sufficiency of the evidence, we conclude that the

evidence was legally and factually sufficient to support the trial court’s finding R.P.

engaged in conduct that endangered the physical and emotional well-being of A.P. and

M.P. pursuant to section 161.001(b)(1)(E) of the Texas Family Code and that termination

of R.P.’s parental rights to A.P. and M.P. is in the best interest of the children. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(E); see also In re J.O.A., 283 S.W.3d at 344-45; In re J.F.C.,

96 S.W.3d at 264-68; In re J.F.-G., 612 S.W.3d at 381-82. And because we find that the

evidence is sufficient under section 161.001(b)(1)(E), we have addressed the concerns of

protecting R.P.’s due-process and due-course-of-law rights. See In re N.G., 577 S.W.3d

230, 235-36 (Tex. 2019).

In addition, because only one predicate finding is necessary for the termination of

parental rights, we need not address R.P.’s complaints regarding the predicate grounds

under subsections (b)(1)(D) and (b)(1)(O). See TEX. R. APP. P. 47.1, 47.4.; see also In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003); In re J.S.S., 594 S.W.3d at 503. Accordingly, we overrule

R.P.’s sole issue on appeal.

Conclusion

We affirm the judgment of the trial court.

In the Interest of A.P. and M.P., children Page 9 STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed March 1, 2023 [CV06]

In the Interest of A.P. and M.P., children Page 10