In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00395-CV
IN THE INTEREST OF L.L., A CHILD
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 82,798-E, Honorable Douglas Woodburn, Presiding
February 4, 2015
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
A.L. appeals from the termination of his parental rights to his two-year-old
daughter L.L.1 He does so by contesting the sufficiency of the evidence to support the
statutory grounds of termination as well as the finding that termination was in the best
interest of the child. We affirm the order.
The standard of review is that set forth in In re K.M.L., 443 S.W.3d 101 (Tex.
2013). The evidence must be of such quantum that a fact finder could reasonably form
a firm belief or conviction about the truth of the matter on which the State bears the
burden of proof. Id. at 112. Furthermore, only one statutory ground is needed to
1 The parental rights of the mother were previously terminated. support termination. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009,
pet. denied). One of the grounds relied upon by the trial court was that A.L. engaged in
conduct or knowingly placed his child with persons who engaged in conduct that
endangered the physical or emotional well-being of the child. TEX. FAM. CODE ANN. §
161.001(1)(E) (West 2014).
To “endanger” means to expose to loss or injury; to jeopardize. In re S.M.L.D.,
150 S.W.3d 754, 757 (Tex. App.—Amarillo 2004, no pet.). Although the standard
requires more than a threat of metaphysical injury or the possible ill effects of a less-
than-ideal family environment, it is not necessary that the conduct be directed at the
child or that the child must actually suffer injury. Id. Furthermore, a danger to the
child's well-being may be inferred from parental misconduct. Id. Finally, an inquiry
under section 161.001(1)(E) focuses upon the conduct of the parent, including the
parent's actions or omissions or failures to act. Id.
Statutory Ground
The evidence shows that L.L. was removed from her mother’s care at birth on
August 22, 2012 because both the mother and baby tested positive for
methamphetamine and marijuana. The mother had another child that was being raised
by a relative. A.L. also tested positive for those drugs, and told the caseworker that he
had been smoking methamphetamine daily up until a week before the birth of the child.
A service plan was filed for A.L. on October 1, 2012. Pursuant to it, A.L. was to
maintain contact with the Department of Family and Protective Services (the
Department), and complete counseling, marriage counseling, drug rehabilitation, a
batterer’s intervention prevention program, a psychological evaluation, and parenting
2 classes. While the plan was pending, A.L. 1) maintained only sporadic contact with the
Department, 2) was arrested and placed in the Potter County jail in December 2012
after having been stopped by police with drugs and a gun in his vehicle, 3) arrested and
placed in the Randall County jail in March 2013 having been stopped by police for
unauthorized use of a motor vehicle, 4) attended several drug rehabilitation programs
but did not complete them, 5) told a caseworker that he had a drug problem, 6) failed to
complete any of his other services, 7) did not pay child support for the child, and 8) was
incarcerated at the time of the final hearing after being convicted in September 2013 of
unauthorized use of a motor vehicle and possession of a controlled substance (for
which he received an eight-year prison sentence for each offense). Appellant also had
a 2005 conviction for burglary of a habitation and a 2007 conviction for robbery; each of
those convictions was followed by confinement in prison for two and four years,
respectively.
In assessing whether A.L. engaged in conduct or knowingly placed the child with
persons who engaged in conduct that endangered the physical or emotional well-being
of the child, we may consider parental conduct either before or after the child’s birth. In
re A.L.W., No. 02-07-342-CV, 2008 Tex. App. LEXIS 2852, at *14-15 (Tex. App.—Fort
Worth April 17, 2008, no pet.) (mem. op.); accord In re J.O.A., 283 S.W.3d 336, 345-46
(Tex. 2009) (stating that the “endangering conduct may include the parent's actions
before the child's birth, while the parent had custody of older children, including
evidence of drug usage”). We may also consider drug use by the parent. In re J.O.A.,
283 S.W.3d at 345-46. And, while imprisonment, alone, does not support a finding of
endangerment, evidence that includes the imprisonment of the parent and
3 demonstrates a course of conduct that has the effect of endangering the child's physical
or emotional well-being supports a finding of endangerment. Texas Dep't of Human
Services v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987); In re C.A.B., 289 S.W.3d 874, 886
(Tex. App.—Houston [14th Dist.] 2009, no pet.).
Both parents were using drugs prior to the birth of the child, and the child tested
positive for methamphetamine and marijuana at birth. A.L. admitted that since 2005, he
has been incarcerated more time than he has been free. Moreover, he had continued
to commit criminal offenses since the child’s birth, continued to use drugs, and failed to
support the child. There is no evidence that he had the ability to provide the child with
stable housing or other necessities even during the times he was not incarcerated.
This evidence is of such quantum that a fact finder could reasonably form a firm belief
or conviction that A.L. engaged in conduct or knowingly placed his child with persons
who engaged in conduct that endangered the physical or emotional well-being of the
child. It supports a finding of a voluntary, deliberate, and conscious course of conduct
warranting termination. See In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth
2013), aff’d, 437 S.W.3d 498 (Tex. 2014) (holding that a voluntary, deliberate, and
conscious course of conduct is required and that conduct which subjects a child to a life
of uncertainty and instability endangers the child’s physical and emotional well-being).
Best Interest
In determining the best interest of the child, we consider among other things, 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
4 those individuals to promote the best interest of the child, 6) the plans for the child by
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00395-CV
IN THE INTEREST OF L.L., A CHILD
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 82,798-E, Honorable Douglas Woodburn, Presiding
February 4, 2015
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
A.L. appeals from the termination of his parental rights to his two-year-old
daughter L.L.1 He does so by contesting the sufficiency of the evidence to support the
statutory grounds of termination as well as the finding that termination was in the best
interest of the child. We affirm the order.
The standard of review is that set forth in In re K.M.L., 443 S.W.3d 101 (Tex.
2013). The evidence must be of such quantum that a fact finder could reasonably form
a firm belief or conviction about the truth of the matter on which the State bears the
burden of proof. Id. at 112. Furthermore, only one statutory ground is needed to
1 The parental rights of the mother were previously terminated. support termination. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009,
pet. denied). One of the grounds relied upon by the trial court was that A.L. engaged in
conduct or knowingly placed his child with persons who engaged in conduct that
endangered the physical or emotional well-being of the child. TEX. FAM. CODE ANN. §
161.001(1)(E) (West 2014).
To “endanger” means to expose to loss or injury; to jeopardize. In re S.M.L.D.,
150 S.W.3d 754, 757 (Tex. App.—Amarillo 2004, no pet.). Although the standard
requires more than a threat of metaphysical injury or the possible ill effects of a less-
than-ideal family environment, it is not necessary that the conduct be directed at the
child or that the child must actually suffer injury. Id. Furthermore, a danger to the
child's well-being may be inferred from parental misconduct. Id. Finally, an inquiry
under section 161.001(1)(E) focuses upon the conduct of the parent, including the
parent's actions or omissions or failures to act. Id.
Statutory Ground
The evidence shows that L.L. was removed from her mother’s care at birth on
August 22, 2012 because both the mother and baby tested positive for
methamphetamine and marijuana. The mother had another child that was being raised
by a relative. A.L. also tested positive for those drugs, and told the caseworker that he
had been smoking methamphetamine daily up until a week before the birth of the child.
A service plan was filed for A.L. on October 1, 2012. Pursuant to it, A.L. was to
maintain contact with the Department of Family and Protective Services (the
Department), and complete counseling, marriage counseling, drug rehabilitation, a
batterer’s intervention prevention program, a psychological evaluation, and parenting
2 classes. While the plan was pending, A.L. 1) maintained only sporadic contact with the
Department, 2) was arrested and placed in the Potter County jail in December 2012
after having been stopped by police with drugs and a gun in his vehicle, 3) arrested and
placed in the Randall County jail in March 2013 having been stopped by police for
unauthorized use of a motor vehicle, 4) attended several drug rehabilitation programs
but did not complete them, 5) told a caseworker that he had a drug problem, 6) failed to
complete any of his other services, 7) did not pay child support for the child, and 8) was
incarcerated at the time of the final hearing after being convicted in September 2013 of
unauthorized use of a motor vehicle and possession of a controlled substance (for
which he received an eight-year prison sentence for each offense). Appellant also had
a 2005 conviction for burglary of a habitation and a 2007 conviction for robbery; each of
those convictions was followed by confinement in prison for two and four years,
respectively.
In assessing whether A.L. engaged in conduct or knowingly placed the child with
persons who engaged in conduct that endangered the physical or emotional well-being
of the child, we may consider parental conduct either before or after the child’s birth. In
re A.L.W., No. 02-07-342-CV, 2008 Tex. App. LEXIS 2852, at *14-15 (Tex. App.—Fort
Worth April 17, 2008, no pet.) (mem. op.); accord In re J.O.A., 283 S.W.3d 336, 345-46
(Tex. 2009) (stating that the “endangering conduct may include the parent's actions
before the child's birth, while the parent had custody of older children, including
evidence of drug usage”). We may also consider drug use by the parent. In re J.O.A.,
283 S.W.3d at 345-46. And, while imprisonment, alone, does not support a finding of
endangerment, evidence that includes the imprisonment of the parent and
3 demonstrates a course of conduct that has the effect of endangering the child's physical
or emotional well-being supports a finding of endangerment. Texas Dep't of Human
Services v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987); In re C.A.B., 289 S.W.3d 874, 886
(Tex. App.—Houston [14th Dist.] 2009, no pet.).
Both parents were using drugs prior to the birth of the child, and the child tested
positive for methamphetamine and marijuana at birth. A.L. admitted that since 2005, he
has been incarcerated more time than he has been free. Moreover, he had continued
to commit criminal offenses since the child’s birth, continued to use drugs, and failed to
support the child. There is no evidence that he had the ability to provide the child with
stable housing or other necessities even during the times he was not incarcerated.
This evidence is of such quantum that a fact finder could reasonably form a firm belief
or conviction that A.L. engaged in conduct or knowingly placed his child with persons
who engaged in conduct that endangered the physical or emotional well-being of the
child. It supports a finding of a voluntary, deliberate, and conscious course of conduct
warranting termination. See In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth
2013), aff’d, 437 S.W.3d 498 (Tex. 2014) (holding that a voluntary, deliberate, and
conscious course of conduct is required and that conduct which subjects a child to a life
of uncertainty and instability endangers the child’s physical and emotional well-being).
Best Interest
In determining the best interest of the child, we consider among other things, 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
4 those individuals to promote the best interest of the child, 6) the plans for the child by
those individuals or by the agency seeking custody, 7) the stability of the home, 8) the
acts or omissions of the parent indicating that the existing parent/child relationship is not
a proper one, and 9) any excuse for the acts or omissions of the parent. Holley v.
Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re P.E.W., 105 S.W.3d 771, 779-80 (Tex.
App.—Amarillo 2003, no pet.). The list is not exhaustive, and each factor need not
support termination. In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.—Amarillo 2003, pet.
denied). Moreover, the same evidence illustrating the statutory grounds in support of
termination may be probative of the child’s best interest. In re C.H., 89 S.W.3d 17, 28
(Tex. 2002).
In addition to the evidence we have already recited, there was evidence that the
child lives in the home of a maternal cousin, has been there since October 2012, is
bonded to the family, is thriving, and is developmentally on target. Other evidence
discloses that the child does not know her biological father.
A.L. wants the child to remain in her current placement, but wants to have a
relationship with the child when he is released from prison. Yet, the current foster
parent, who happens to be a relative of A.L., opined that termination of the relationship
is best for the child.
Other evidence also illustrates that A.L. may have a parole hearing in January
2015. However, he has had one before without encountering success. So too did he
admit that there was no assurance he will be paroled. And, while he testified that he
has a job waiting for him when he is released from prison, we are not cited to evidence
of where his prospective employer appeared at trial and confirmed that representation.
5 Taken as a whole, the foregoing is evidence is of such quantum that enables a
fact finder to reasonably form a firm belief or conviction that termination of the parental
relationship is in the best interest of the child here. The child’s need for stability does
not require her to wait longer than the two years she already has for her father to
attempt to demonstrate an ability to actually care for her.
Accordingly, the order of termination is affirmed.
Per Curiam