In the Interest of D.W., J.W., and I.W., Children v. the State of Texas

Opinion

Court of Appeals

Tenth Appellate District of Texas

10-26-00099-CV

In the Interest of D.W., J.W., and I.W., Children,

On appeal from the

18th District Court of Johnson County, Texas Judge David A. Barkley, presiding Trial Court Cause No. DC-D202100360

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

The parental rights of J.W. (Father) and A.W. (Mother) to the children, D.W., J.W., and I.W., were terminated. The trial court found by clear and convincing evidence that Father had violated Family Code subsection 161.001(b)(1)(D), (E), and (F), that Mother had violated Family Code subsection 161.001(b)(1)(D) and (E), and that termination was in the children's best interest. See TEX. FAM. CODE ANN. § 161.001(b). Father and Mother appealed. We will affirm the trial court’s judgment.

Discussion

Father raises just one issue on appeal: that there was not legally and factually sufficient evidence that termination of Father’s parental rights was in the best interest of the children. Mother raises four issues on appeal. Specifically, she argues there was legally and factually insufficient evidence to terminate her parental rights to the children under Family Code subsection 161.001(b)(1)(D) and (E) as well as the best interest of the children. She also argues the trial court erred by entering the order of termination and allowing evidence of occurrences or omissions that took place prior to the entry of a prior order denying termination of Mother’s parental rights. Mother’s Issue One – Prior Order The Texas Department of Family and Protective Services (the “Department”) initially became involved on or about June 2020. On April 19, 2021, the Department filed suit seeking the emergency removal of the children. Following a mediated settlement agreement, the Department abandoned its request for termination, and an agreed Order in Suit Affecting the Parent-Child Relationship was signed on July 25, 2022 (the “2022 Order”), naming the Department as Permanent Managing Conservator and Mother as Possessory Conservator.

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Mother argues that the trial court erred by considering evidence, including affidavits dated prior to July 25, 2022, that were presented at a previous termination hearing. Mother classifies the 2022 Order as a denial order. The Department abandoned its request for termination of parental rights following a mediated settlement agreement, so we are not persuaded that termination was adjudicated at the time of the 2022 Order. Because we do not find the 2022 Order to be a prior order denying termination of Mother’s parental rights, Mother’s issue one is overruled. Mother’s Issues Two and Three In order to terminate parental rights of a mother or a father, a court must find: (1) that the parent has committed one of the acts prohibited under Texas Family Code Section 161.001(b)(1); and (2) that termination of parental rights is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001. The standards of review for legal and factual sufficiency of the evidence in cases involving the termination of parental rights are well established and will not be repeated here. See In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).

Termination of parental rights under subsection (D) or (E) requires proof of endangerment, which means to expose the child to loss or injury, or

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to jeopardize. Tex. Dep't. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The endangerment analysis under subsection (D) focuses on evidence relating to the child's environment to determine if the environment was a source of endangerment to the child's physical or emotional well-being. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards. Id. A parent's conduct in the home can create an environment that endangers the well-being of a child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).

Termination under subsection (E) requires clear and convincing evidence that the parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endan`gers the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The relevant inquiry under subsection (E) is whether sufficient evidence exists that the endangerment of the child's well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied). However, it is not necessary that the parent's conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533. Scienter is not required for a parent's own acts to constitute endangerment under subsection (E). See In re

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L.S., No. 10-22-00119-CV, 2022 WL 3655395, at *2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.). Furthermore, we may consider conduct both before and after the child's removal in an analysis under subsection (E). In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

The evidence here shows many circumstances relevant under Paragraph (D) and (E). Because the evidence is interrelated concerning these two statutory grounds for termination, we consolidate our examination of the evidence as to both grounds. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.— Fort Worth 2004, pet. denied).

Evidence shows that prior to the removal of the children, there was drug use in the home as admitted by both Mother and Father. There were known reports of sexual abuse by one child of another child. The parents admit domestic violence occurred in the home. Mother moved out of state leaving the children with Father despite the above-known circumstances. Following the removal of the children, Father was arrested and his drug use continued—both facts known by Mother. Mother was aware of multiple felonies by Father. Allegations emerged of sexual abuse by the father against at least one of the children. Father was arrested in December 2023 for sexual abuse of a child. Although those charges were later dismissed, it was made

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known to Mother at court hearings and otherwise that Father was to have no contact with the children. However, Mother continued to associate with Father and let Father in her home despite representations to the Department to the contrary. Mother and Father are now remarried and living together again.

In 2024, when one of the children, D.W., was placed in Mother’s home again, Mother left the country for a week without D.W., and there was evidence that D.W. was left alone on repeated occasions. There was evidence of at least one physical altercation between D.W. and Mother. D.W. was subsequently removed in 2025. Since 2022, the evidence showed that Mother has moved at least seven times, and Father has been incarcerated for extended periods of time.

These concerns remained throughout the pendency of the case and were still concerns at the final hearing. Considering all the evidence presented in this case in the light most favorable to the trial court's finding and considering the evidence as a whole, we conclude that the evidence was legally and factually sufficient to support termination of Mother's parental rights under Paragraphs (D) and (E). See TEX. FAM. CODE ANN. § 161.001(b)(1). Thus, Mother’s second and third issues are overruled.

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Best Interest In determining the best interest of a child, several factors have been consistently considered, which were set out in the Supreme Court of Texas's opinion of Holley v. Adams. 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. This list is not exhaustive but simply identifies factors that have been or could be pertinent in the best-interest determination. Id. at 372. There is no requirement that all of these factors be proven as a condition precedent to parental termination. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The absence of evidence about some factors does not preclude a factfinder from reasonably forming a strong conviction that termination is in the child's best interest. Id. In fact, while no one factor is controlling, the analysis of a single factor may be adequate in a particular

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situation to support a finding that termination is in the child's best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

Regarding the emotional and physical danger to the children now and in the future, evidence of past misconduct or neglect can be used to measure a parent's future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is often prologue.”). As already discussed above, Mother and Father consistently caused or allowed the children to live in an environment wrought with drug use (specifically methamphetamines), domestic violence, sexual abuse, and criminality. Evidence that supports a specific ground of termination may be considered as probative evidence in making a determination of the best interests of a child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

Father, at least at the time of the hearing, remains on felony probation, has a pending felony case, and his arrest for sexual abuse of one of the children was dismissed, not adjudicated. When pressed on whether Mother believed the child’s allegation of sexual abuse against Father, Mother ultimately pled the fifth. Additionally, Father failed to complete services offered to address his drug use. The parents admit that their living situation

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is not suitable for the children to return and would require another move. Evidence shows that neither parent paid child support. The parents indicated that they planned for Mother to be the caretaker of the children; however, the Mother admitted to having a strained relationship with some of the children, having a hard time parenting some of the children, and being “triggered” by some of the children’s behavior reminding her of Father.

Based on the foregoing evidence, the trial court could have reasonably formed a firm belief or conviction that termination of Mother's and Father’s parental rights to the children is in the children's best interest. Accordingly, Mother’s fourth issue and Father’s sole issue are overruled.

Conclusion

In light of the foregoing, we affirm the trial court's judgment.

LEE HARRIS

Justice

OPINION DELIVERED and FILED: August 20, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06