In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00009-CV ___________________________
IN THE INTEREST OF B.W., A CHILD
On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV15-00769
Before Birdwell, Bassel, and Womack, JJ. Supplemental Memorandum Opinion by Justice Bassel SUPPLEMENTAL MEMORANDUM OPINION
On May 9, 2019, this court issued its opinion and rendered judgment in this
cause affirming the termination of Appellant C.W.’s (Father’s)1 parental rights to
Blake2 after holding that the evidence was sufficient to support two unchallenged
section 161.001(b)(1) grounds—(F) and (Q). In re B.W., No. 02-19-00009-CV, 2019
WL 2041808, at *8–9 (Tex. App.—Fort Worth May 9, 2019, no pet.) (mem. op.). The
following week, the Texas Supreme Court issued its opinion in In re N.G., in which it
held that due process and due course of law requirements mandate that an appellate
court must address and detail its analysis for an appeal of termination of parental
rights when a parent has presented an issue under family code section
161.001(b)(1)(D) or (E) even when there is sufficient evidence to support another
enumerated ground for termination. See No. 18-0508, 2019 WL 2147263, at *4 (Tex.
May 17, 2019). We therefore supplement our May 9, 2019 opinion with the following
analysis of the portion of Father’s second issue challenging the section
161.001(b)(1)(E) finding.
Texas Family Code section 161.001(b)(1)(E) provides that the court may order
termination of the parent-child relationship if the court finds by clear and convincing
1 See generally Tex. Fam. Code Ann. § 109.002(d) (providing that on the court’s own motion, it may in its opinion identify the parties by fictitious names or by their initials only). 2 See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights).
2 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(b)(1)(E). To “endanger” means to
expose a child to loss or injury or to jeopardize a child’s emotional or physical health.
See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection (E), the evidence
must show that the endangerment was the result of the parent’s conduct, including
acts, omissions, or failure to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.). Termination must be based on more than a single act or
omission, and there must be a voluntary, deliberate, and conscious course of conduct
by the parent. Id. While endangerment often involves physical endangerment, the
statute does not require that conduct be directed at a child or that the child actually
suffers injury; rather, the specific danger to the child’s well-being may be inferred
from the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). A parent’s conduct that subjects a child to a life of uncertainty
and instability endangers the child’s physical and emotional well-being. In re A.B., 412
S.W.3d 588, 599 (Tex. App.—Fort Worth 2013) (en banc op. on reh’g), aff’d, 437
S.W.3d 498 (Tex. 2014). “Domestic violence, want of self[-]control, and propensity for
violence may be considered as evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841,
845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Evidence of criminal conduct,
convictions, or imprisonment is relevant to a review of whether a parent engaged in a
course of conduct that endangered the well-being of the child. A.S. v. Tex. Dep’t of
3 Family & Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.).
Finally, we may consider conduct that occurred outside the child’s presence, including
conduct before the child’s birth. Walker v. Tex. Dep’t of Family & Protective Servs., 312
S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
In our May 9, 2019 opinion, we set forth a detailed factual background. Here,
we recap only the facts that are relevant to an analysis of the endangering-conduct
finding:
• Mother testified that when she was pregnant with Blake, Father yelled at
her, pushed her up against a wall, and then held her down in the front
yard. B.W., 2019 WL 2041808, at *1.
• Mother said that Father had been violent towards her while Blake was
present by verbally abusing her when Blake was only a few months old
to a year old. Id.
• The record demonstrates that in 2015, Father was charged with
aggravated assault with a deadly weapon and was placed on deferred-
adjudication community supervision. Id. Mother testified that Father’s
criminal charge was a result of his assaulting his then-girlfriend. Id.
• Mother testified that Father’s drug usage created a situation that had
endangered Blake’s physical and emotional well-being. Id. Mother
explained that Father had anger issues and was very violent when he was
4 on drugs. Id. Mother testified that she had seen Father hit Paternal
Grandmother on the back with a broomstick and that he had been
verbally abusive to Paternal Grandmother and Paternal Grandfather. Id.
at *1 n.5.
• Mother testified that her concerns about Father’s drug use were
confirmed when his community supervision was revoked due to failed
drug tests and he was adjudicated guilty of aggravated assault with a
deadly weapon. Id. at *2. The judgment reflects that Father was placed
on deferred-adjudication community supervision in 2015; that the State
filed a motion to adjudicate, alleging that Father had violated multiple
conditions of his community supervision; that he pleaded true to the
alleged violations; and that the trial court found the allegations to be
true, adjudicated Father guilty of aggravated assault, and sentenced him
to ten years’ confinement. Id. The record reflects that Father’s parole
eligibility date is January 13, 2023. Id.
• Paternal Grandmother said that Father began using drugs at the end of
high school and had used drugs off and on for eight years. Id. at *3.
Paternal Grandmother admitted that when Father was doing drugs, he
would push her, yell at her, and scream at her and Paternal Grandfather. Id.
5 • Paternal Grandmother admitted that someone who had abused drugs
and had committed aggravated assault with a deadly weapon was not a
good, stable parent. Id. at *4. Paternal Grandmother could not
guarantee that Father would stay clean after he is released from prison.
Id.
• Paternal Grandfather admitted that he and Father had engaged in verbal
altercations. Id.
• Paternal Uncle did not believe that it was a trait of a good father to use
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00009-CV ___________________________
IN THE INTEREST OF B.W., A CHILD
On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV15-00769
Before Birdwell, Bassel, and Womack, JJ. Supplemental Memorandum Opinion by Justice Bassel SUPPLEMENTAL MEMORANDUM OPINION
On May 9, 2019, this court issued its opinion and rendered judgment in this
cause affirming the termination of Appellant C.W.’s (Father’s)1 parental rights to
Blake2 after holding that the evidence was sufficient to support two unchallenged
section 161.001(b)(1) grounds—(F) and (Q). In re B.W., No. 02-19-00009-CV, 2019
WL 2041808, at *8–9 (Tex. App.—Fort Worth May 9, 2019, no pet.) (mem. op.). The
following week, the Texas Supreme Court issued its opinion in In re N.G., in which it
held that due process and due course of law requirements mandate that an appellate
court must address and detail its analysis for an appeal of termination of parental
rights when a parent has presented an issue under family code section
161.001(b)(1)(D) or (E) even when there is sufficient evidence to support another
enumerated ground for termination. See No. 18-0508, 2019 WL 2147263, at *4 (Tex.
May 17, 2019). We therefore supplement our May 9, 2019 opinion with the following
analysis of the portion of Father’s second issue challenging the section
161.001(b)(1)(E) finding.
Texas Family Code section 161.001(b)(1)(E) provides that the court may order
termination of the parent-child relationship if the court finds by clear and convincing
1 See generally Tex. Fam. Code Ann. § 109.002(d) (providing that on the court’s own motion, it may in its opinion identify the parties by fictitious names or by their initials only). 2 See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights).
2 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(b)(1)(E). To “endanger” means to
expose a child to loss or injury or to jeopardize a child’s emotional or physical health.
See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection (E), the evidence
must show that the endangerment was the result of the parent’s conduct, including
acts, omissions, or failure to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.). Termination must be based on more than a single act or
omission, and there must be a voluntary, deliberate, and conscious course of conduct
by the parent. Id. While endangerment often involves physical endangerment, the
statute does not require that conduct be directed at a child or that the child actually
suffers injury; rather, the specific danger to the child’s well-being may be inferred
from the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). A parent’s conduct that subjects a child to a life of uncertainty
and instability endangers the child’s physical and emotional well-being. In re A.B., 412
S.W.3d 588, 599 (Tex. App.—Fort Worth 2013) (en banc op. on reh’g), aff’d, 437
S.W.3d 498 (Tex. 2014). “Domestic violence, want of self[-]control, and propensity for
violence may be considered as evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841,
845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Evidence of criminal conduct,
convictions, or imprisonment is relevant to a review of whether a parent engaged in a
course of conduct that endangered the well-being of the child. A.S. v. Tex. Dep’t of
3 Family & Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.).
Finally, we may consider conduct that occurred outside the child’s presence, including
conduct before the child’s birth. Walker v. Tex. Dep’t of Family & Protective Servs., 312
S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
In our May 9, 2019 opinion, we set forth a detailed factual background. Here,
we recap only the facts that are relevant to an analysis of the endangering-conduct
finding:
• Mother testified that when she was pregnant with Blake, Father yelled at
her, pushed her up against a wall, and then held her down in the front
yard. B.W., 2019 WL 2041808, at *1.
• Mother said that Father had been violent towards her while Blake was
present by verbally abusing her when Blake was only a few months old
to a year old. Id.
• The record demonstrates that in 2015, Father was charged with
aggravated assault with a deadly weapon and was placed on deferred-
adjudication community supervision. Id. Mother testified that Father’s
criminal charge was a result of his assaulting his then-girlfriend. Id.
• Mother testified that Father’s drug usage created a situation that had
endangered Blake’s physical and emotional well-being. Id. Mother
explained that Father had anger issues and was very violent when he was
4 on drugs. Id. Mother testified that she had seen Father hit Paternal
Grandmother on the back with a broomstick and that he had been
verbally abusive to Paternal Grandmother and Paternal Grandfather. Id.
at *1 n.5.
• Mother testified that her concerns about Father’s drug use were
confirmed when his community supervision was revoked due to failed
drug tests and he was adjudicated guilty of aggravated assault with a
deadly weapon. Id. at *2. The judgment reflects that Father was placed
on deferred-adjudication community supervision in 2015; that the State
filed a motion to adjudicate, alleging that Father had violated multiple
conditions of his community supervision; that he pleaded true to the
alleged violations; and that the trial court found the allegations to be
true, adjudicated Father guilty of aggravated assault, and sentenced him
to ten years’ confinement. Id. The record reflects that Father’s parole
eligibility date is January 13, 2023. Id.
• Paternal Grandmother said that Father began using drugs at the end of
high school and had used drugs off and on for eight years. Id. at *3.
Paternal Grandmother admitted that when Father was doing drugs, he
would push her, yell at her, and scream at her and Paternal Grandfather. Id.
5 • Paternal Grandmother admitted that someone who had abused drugs
and had committed aggravated assault with a deadly weapon was not a
good, stable parent. Id. at *4. Paternal Grandmother could not
guarantee that Father would stay clean after he is released from prison.
Id.
• Paternal Grandfather admitted that he and Father had engaged in verbal
altercations. Id.
• Paternal Uncle did not believe that it was a trait of a good father to use
drugs in violation of a court order prohibiting him from using drugs. Id.
Additionally, the record reflects that in the Order in Suit to Modify Parent–Child
Relationship rendered by the trial court on September 29, 2016, the trial court found
that “[Father] has a history or pattern of committing family violence during the two-
year period preceding or during the pendency of the suit.” Id. at *6.
As demonstrated by the facts above, Father had a history of drug use, anger
issues, and domestic violence, which culminated in a criminal conviction for
aggravated assault with a deadly weapon. As a result of that conviction, Father was
incarcerated at the time of the termination trial and was not eligible for parole until
2023. It is beyond doubt that violence and illicit drug use endanger a child’s physical
and emotional well-being. Father has repeatedly engaged in endangering conduct, and
the factfinder could reasonably form a firm belief or conviction that Father may
6 engage in such conduct in the future. Thus, we conclude that this evidence is
sufficient to allow the trial court as factfinder to determine that Father had engaged in
conduct that endangered Blake’s physical or emotional well-being. See In re A.A.M.,
464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (recognizing
parental drug use and abusive conduct by a family member may endanger a child’s
well-being under subsection (b)(1)(E)); In re C.J.S., 383 S.W.3d 682, 689–90 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (holding evidence sufficient to support
subsection (b)(1)(E) finding based on parent’s positive drug tests, poor judgment, and
lack of impulse control); J.T.G., 121 S.W.3d at 131 (holding evidence legally sufficient
to support endangerment findings because parent had a history of domestic violence,
drug abuse, and criminal conduct). Accordingly, we overrule the portion of Father’s
second issue challenging the section 161.001(b)(1)(E) finding.
Having complied with the Texas Supreme Court’s directive in N.G., we again
affirm the judgment terminating Father’s parental rights to Blake. See 2019 WL
2147263, at *4; see also In re C.M.-L.G., No. 14-16-00921-CV, 2017 WL 1719133, at
*8–10, *13 (Tex. App.––Houston [14th Dist.] May 2, 2017, pet. denied) (mem. op.)
(addressing (E) finding for collateral consequences purposes, holding evidence
sufficient under that ground, and affirming entire judgment).
/s/ Dabney Bassel Dabney Bassel Justice
Delivered: June 6, 2019