IN THE TENTH COURT OF APPEALS
No. 10-22-00119-CV
IN THE INTEREST OF L.S., A CHILD
From the 361st District Court Brazos County, Texas Trial Court No. 21-000361-CV-361
MEMORANDUM OPINION
Twytanisha appeals from a judgment that terminated her parental rights to her
child, L.S. See TEX. FAM. CODE ANN. §161.001. Twytanisha complains that the evidence
was legally and factually insufficient for the trial court to have found that she committed
the predicate acts set forth in Section 161.001(b)(1)(D) (endangering conditions) and (E)
(endangering conduct) and that the trial court improperly found that she failed to
complete her service plan because she was unable to comply with the plan due to her
limited mental capacity. Because we find no reversible error, we affirm the judgment of
termination.
The termination judgment lists four predicate acts upon which the termination
was granted as to Twytanisha: endangering conditions (Subsection (D)); endangering
conduct (Subsection (E)); constructive abandonment (Subsection N); and failure to comply with a court-ordered service plan (Subsection (O)). See TEX. FAM. CODE ANN. §
161.001(b)(1)(D), (E), (N), (O). However, Twytanisha's issues on appeal challenge only
the endangering conditions and endangering conduct grounds and the failure to
complete her service plan, but not constructive abandonment. By failing to challenge the
finding under Subsection (N), Twytanisha has waived any complaint about the
sufficiency of the evidence to support that finding, and therefore we do not need to
address the other predicate acts because only one ground is required to support
termination. See In re Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019) (per curiam) (stating that
"only one ground is required to terminate parental rights"). We overrule issues one and
three. Further, because Twytanisha has not challenged the trial court's best interest
finding, we affirm the judgment of termination of her parental rights.
However, the Texas Supreme Court has held that because of the potential for
future adverse consequences based on a prior termination, we are required to consider
the sufficiency of the evidence pursuant to Sections 161.001(b)(1)(D) or (E) if challenged
even if the termination is proper as to some other section, therefore, we will also address
Twytanisha's second issue relating to the sufficiency of the evidence pursuant to Section
161.001(b)(1)(E). In re N.G., 577 S.W.3d 230, 235-36 (Tex. 2019).
STANDARD OF REVIEW
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.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25
In the Interest of L.S., a Child Page 2 (Tex. 2002) (factual sufficiency); see also In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009).
SECTION 161.001(b)(1)(E)
In her second issue, Twytanisha complains that the evidence was legally and
factually insufficient for the trial court to have found that she committed the predicate
act in Section 161.001(b)(1)(E), which allows termination of parental rights if the trial
court finds by clear and convincing evidence that the parent "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).
"Endanger" means "to expose a child to loss or injury, or to jeopardize a child's emotional
or mental health." In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam). An
endangerment finding often involves physical endangerment, but it is not necessary to
show that the parent's conduct was directed at the child or that the child suffered actual
injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). "Rather, the
specific danger to the child's well-being may be inferred from the parent's misconduct
alone." Id. In our endangerment analysis pursuant to Section 161.001(b)(1)(E), we may
consider conduct both before and after the Department removed the children from their
parent. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Twytanisha argues that scienter is required for a finding of endangering conduct
pursuant to Section 161.001(b)(1)(E), and that because of her mental health and below
average intellectual functioning issues, the evidence was insufficient to show that she
knowingly endangered L.S. However, "[s]cienter is not required for an appellant's own
In the Interest of L.S., a Child Page 3 acts [to constitute endangerment] under [S]ection 161.001(b)(1)(E)." 1 In re I.D.G., 579
S.W.3d 842, 851 (Tex. App.—El Paso 2019, pet. denied) (op. on reh'g).
Twytanisha further argues that there was insufficient evidence to show that she
endangered L.S. because there was only testimony of allegations in a report that led to
the removal of L.S. and that there were missed drug tests although drug use was not a
substantial concern of the Department and Twytanisha had never tested positive for
drugs. The Department disagrees with Twytanisha's assessment of the evidence and
argues that the evidence of endangering conduct included that Twytanisha: (1) was
unstable, unemployed, homeless, and unable to provide for L.S.’s basic needs, resulting
in the child’s removal; (2) remained unemployed and unstable throughout the case while
the child remained in foster care; (3) engaged in conduct resulting in her incarceration
during the case and at the time of trial; (4) failed to complete her service plan, including
therapy or drug tests—her therapist discharged her and said she failed to make any
progress; (5) had significant mental health issues that she failed to address or treat;
(6) made inappropriate comments to L.S. during visits that had a negative emotional
impact on the child; and (7) inconsistently participated in visitation with the child,
resulting in actual emotional harm for the child.
A parent's mental instability may contribute to a finding that the parent engaged
in a course of conduct that endangered a child's physical or emotional well-being. In re
1 Because the issue of scienter of a third party is not relevant to this appeal because there was no suggestion or argument by the department that the mother’s rights were terminated based on the conduct of a third party with whom the mother left L.S., we do not address the issue of scienter with regard to the conduct of a third person pursuant to Section 161.001(b)(1)(E). In the Interest of L.S., a Child Page 4 T.G.R.-M., 404 S.W.3d 7, 14 (Tex. App.—Houston [1st Dist.] 2013, no pet.). In determining
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IN THE TENTH COURT OF APPEALS
No. 10-22-00119-CV
IN THE INTEREST OF L.S., A CHILD
From the 361st District Court Brazos County, Texas Trial Court No. 21-000361-CV-361
MEMORANDUM OPINION
Twytanisha appeals from a judgment that terminated her parental rights to her
child, L.S. See TEX. FAM. CODE ANN. §161.001. Twytanisha complains that the evidence
was legally and factually insufficient for the trial court to have found that she committed
the predicate acts set forth in Section 161.001(b)(1)(D) (endangering conditions) and (E)
(endangering conduct) and that the trial court improperly found that she failed to
complete her service plan because she was unable to comply with the plan due to her
limited mental capacity. Because we find no reversible error, we affirm the judgment of
termination.
The termination judgment lists four predicate acts upon which the termination
was granted as to Twytanisha: endangering conditions (Subsection (D)); endangering
conduct (Subsection (E)); constructive abandonment (Subsection N); and failure to comply with a court-ordered service plan (Subsection (O)). See TEX. FAM. CODE ANN. §
161.001(b)(1)(D), (E), (N), (O). However, Twytanisha's issues on appeal challenge only
the endangering conditions and endangering conduct grounds and the failure to
complete her service plan, but not constructive abandonment. By failing to challenge the
finding under Subsection (N), Twytanisha has waived any complaint about the
sufficiency of the evidence to support that finding, and therefore we do not need to
address the other predicate acts because only one ground is required to support
termination. See In re Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019) (per curiam) (stating that
"only one ground is required to terminate parental rights"). We overrule issues one and
three. Further, because Twytanisha has not challenged the trial court's best interest
finding, we affirm the judgment of termination of her parental rights.
However, the Texas Supreme Court has held that because of the potential for
future adverse consequences based on a prior termination, we are required to consider
the sufficiency of the evidence pursuant to Sections 161.001(b)(1)(D) or (E) if challenged
even if the termination is proper as to some other section, therefore, we will also address
Twytanisha's second issue relating to the sufficiency of the evidence pursuant to Section
161.001(b)(1)(E). In re N.G., 577 S.W.3d 230, 235-36 (Tex. 2019).
STANDARD OF REVIEW
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.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25
In the Interest of L.S., a Child Page 2 (Tex. 2002) (factual sufficiency); see also In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009).
SECTION 161.001(b)(1)(E)
In her second issue, Twytanisha complains that the evidence was legally and
factually insufficient for the trial court to have found that she committed the predicate
act in Section 161.001(b)(1)(E), which allows termination of parental rights if the trial
court finds by clear and convincing evidence that the parent "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).
"Endanger" means "to expose a child to loss or injury, or to jeopardize a child's emotional
or mental health." In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam). An
endangerment finding often involves physical endangerment, but it is not necessary to
show that the parent's conduct was directed at the child or that the child suffered actual
injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). "Rather, the
specific danger to the child's well-being may be inferred from the parent's misconduct
alone." Id. In our endangerment analysis pursuant to Section 161.001(b)(1)(E), we may
consider conduct both before and after the Department removed the children from their
parent. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Twytanisha argues that scienter is required for a finding of endangering conduct
pursuant to Section 161.001(b)(1)(E), and that because of her mental health and below
average intellectual functioning issues, the evidence was insufficient to show that she
knowingly endangered L.S. However, "[s]cienter is not required for an appellant's own
In the Interest of L.S., a Child Page 3 acts [to constitute endangerment] under [S]ection 161.001(b)(1)(E)." 1 In re I.D.G., 579
S.W.3d 842, 851 (Tex. App.—El Paso 2019, pet. denied) (op. on reh'g).
Twytanisha further argues that there was insufficient evidence to show that she
endangered L.S. because there was only testimony of allegations in a report that led to
the removal of L.S. and that there were missed drug tests although drug use was not a
substantial concern of the Department and Twytanisha had never tested positive for
drugs. The Department disagrees with Twytanisha's assessment of the evidence and
argues that the evidence of endangering conduct included that Twytanisha: (1) was
unstable, unemployed, homeless, and unable to provide for L.S.’s basic needs, resulting
in the child’s removal; (2) remained unemployed and unstable throughout the case while
the child remained in foster care; (3) engaged in conduct resulting in her incarceration
during the case and at the time of trial; (4) failed to complete her service plan, including
therapy or drug tests—her therapist discharged her and said she failed to make any
progress; (5) had significant mental health issues that she failed to address or treat;
(6) made inappropriate comments to L.S. during visits that had a negative emotional
impact on the child; and (7) inconsistently participated in visitation with the child,
resulting in actual emotional harm for the child.
A parent's mental instability may contribute to a finding that the parent engaged
in a course of conduct that endangered a child's physical or emotional well-being. In re
1 Because the issue of scienter of a third party is not relevant to this appeal because there was no suggestion or argument by the department that the mother’s rights were terminated based on the conduct of a third party with whom the mother left L.S., we do not address the issue of scienter with regard to the conduct of a third person pursuant to Section 161.001(b)(1)(E). In the Interest of L.S., a Child Page 4 T.G.R.-M., 404 S.W.3d 7, 14 (Tex. App.—Houston [1st Dist.] 2013, no pet.). In determining
whether a parent endangered the child's physical and emotional well-being due to mental
instability, the factfinder may consider evidence of a parent's failure to comply with
services to improve her mental health. In re S.R., 452 S.W.3d 351, 365 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied).
Although, standing alone, evidence of incarceration is insufficient to support an
endangering-conduct finding, it can be properly considered on the issue of endangering
conduct and is relevant to prove a parent's overall instability. See In re J.F.-G., 627 S.W.3d
304, 312-15 (Tex. 2021) (reaffirming that a parent's criminal history and imprisonment are
factors when considering endangering conduct although the mere fact of a conviction or
sentence of incarceration, standing alone, will not support termination under Subsection
(E)).
A parent’s failure to regularly participate in visitation can reasonably be found to
be emotionally endangering to the child’s well-being. In re A.F., No, 07-19-00435-CV,
2020 WL 2786940, at *7 (Tex. App.—Amarillo May 29, 2020, no pet. h) (mem. op.). In
general, a parent's conduct that subjects children to a life of uncertainty and instability
endangers the physical and emotional well-being of those children. Boyd, 727 S.W.2d at
531.
L.S. was three years old at the time of her removal and was initially removed from
her mother because of two referrals that Twytanisha and L.S. were basically homeless,
having moved from place to place, an allegation that L.S. had not eaten for over a week,
In the Interest of L.S., a Child Page 5 and that Twytanisha's mental instability was resulting in verbal and physical altercations
that L.S. was believed to have seen. After the removal, the department began providing
services to Twytanisha, although her participation was sporadic. When her
psychological evaluation was completed, Twytanisha was provisionally diagnosed with
paranoid schizophrenia and the evaluation showed that she was at high risk for child
abuse even with a significantly heightened level of attempting to present herself in a
positive light in the testing. Her IQ was 81, which was below average. The doctor who
performed the evaluation was unable to complete the evaluation due to Twytanisha's
inability to focus, lower intellectual functioning, and her tendency to enter a trance-like
state during the part that he did complete. The doctor recommended that Twytanisha be
evaluated by MHMR and a psychiatrist for her mental health issues, aggression control
classes, protective parenting classes, and drug treatment. He recommended that the
classes be done in a manner to ensure Twytanisha's comprehension. Twytanisha refused
to go to MHMR and did not complete any of the doctor's recommendations. She
participated in therapy for a while but was ultimately discharged for non-attendance.
Twytanisha participated in visitation with L.S. and her other infant child, but those
visits were not regular because Twytanisha would be late or not attend at all. At one
visit, Twytanisha told L.S. that she should leave her foster home because it was unsafe,
which led to L.S. attempting to leave. Between Twytanisha's inconsistent attendance at
visits, even after the visits were switched to virtual visits rather than in person, and her
interactions with L.S. when the visits did take place either in person or virtually, L.S.'s
In the Interest of L.S., a Child Page 6 emotional health and overall behavior began deteriorating significantly and she began
acting out sexually and emotionally to such a degree that her foster parents requested
that she be moved. L.S. had started therapy to address these issues prior to the trial.
Twytanisha did not believe that she had behaved inappropriately or that there were any
issues with the visits.
Twytanisha had been arrested and was in jail during the pendency of the
proceedings through the trial because, in her words, she "made a stupid mistake" and
"decided to be greedy." She testified that she would be in jail for six months. During the
proceedings, Twytanisha had not established a stable home or employment, and had not
completed even a moderate part of her service plan at the time of the trial.
Upon our review of the record under the appropriate standards for determining
the legal and factual sufficiency of the evidence, we find that the evidence was legally
and factually sufficient for the trial court to have found that Twytanisha engaged in
conduct that endangered the physical and emotional well-being of the child pursuant to
Section 161.001(b)(1)(E). We overrule issue two.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY Chief Justice
In the Interest of L.S., a Child Page 7 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed August 24, 2022 [CV06]
In the Interest of L.S., a Child Page 8