in the Interest of M.K.C-D., S.E.C.J, and E.M.C., Children

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00558-CV

IN THE INTEREST OF M.K.C.-D., S.E.C.J, and E.M.C., Children

From the 218th Judicial District Court, Wilson County, Texas Trial Court No. 11-09-0568-CVW Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: January 30, 2013

AFFIRMED

Appellant Mother Ashley C. appeals the trial court’s judgment terminating her parental

rights to her children, M.K.C.-D., S.C.J., and E.M.C. Appellant Father Michael K. appeals the

trial court’s judgment terminating his parental rights to his son E.M.C. We affirm.

BACKGROUND

The Department of Family and Protective Services (“the Department”) had previously

removed the children in this case from Ashley C.’s care. In June 2011, the children were returned

to her. In September 2011, three months after the children had been returned, Ashley C.’s home

was searched by law enforcement officials, and materials used to manufacture methamphetamine

were found. More materials used to manufacture methamphetamine were found in a car parked

near her home. That same day, Ashley C. tested positive for methamphetamine. Michael K., who 04-12-00558-CV

was passed out on the floor at the time of the search, was later arrested and convicted for

manufacturing methamphetamine. The children were again removed from Ashley C.’s care. The

Department then petitioned to terminate Ashley C.’s and Michael K.’s parental rights.

At trial, Deputy Richard Lee Nichols testified that on September 10, 2011, he executed a

search warrant at Ashley C.’s home. According to Deputy Nichols, he found several items,

which he knew from his law enforcement experience are used to manufacture methamphetamine.

He testified that Ashley C., Michael K., and the children were present at the time the items were

found. He testified that Ashley C. claimed that she was not aware of the materials found in her

home. According to Deputy Nichols, the materials found are a hazard for children.

DeAnna Lindsey, the Department’s caseworker, testified that Ashley C. has had a history

with the Department off and on since 2001. M.K.C.-D. and S.E.C.J. had been in the

Department’s care from October 2008 to June 2011. They were returned to Ashley’s C. care

without any supervision in June 2011. They came back into the Department’s care in September

2011 when a warrant was served at Ashley C.’s home. Lindsey testified that the police

discovered what was believed to be a meth lab in the home and products for a meth lab. They

then discovered a meth lab in Michael’s car, which was near the home. Lindsey testified that the

Department was then called. According to Lindsey, Ashley C. claimed the products found were

cleaning materials and products for her own personal vehicle.

At the time of trial, M.K.C.-D., a girl, was seven years old. S.E.C.J., a girl, was five years

old. E.M.C., a boy, was two years old. According to Lindsey, at the time of trial, the children had

been in the Department’s care for almost a year, and Michael K. had not maintained any contact

with E.M.C. or with the Department. Lindsey testified that Michael K. had not demonstrated that

he could provide a safe and stable home for E.M.C. She further testified that Michael K. was

sentenced on February 24, 2012, to a seven-year period of confinement in prison in Cause No. -2- 04-12-00558-CV

2009-CR-1086 (Bexar County). He was also sentenced on that same date in Cause No. 2010-CR-

11228 (Bexar County) to a one-year sentence to run concurrently with the first one. On August

15, 2012, he was sentenced in Cause No. 1207084-CRW (Wilson County) for the offense of

manufacture of a controlled substance, relating to the incident in this case. Lindsey testified that

it was in E.M.C.’s best interest for Michael K.’s parental rights to be terminated because he

could not provide a safe and stable environment for his son.

With regard to Ashley C., Lindsey testified that while Ashley C. completed all classes

and counseling mandated by the family service plan, Lindsey still had concerns about returning

the children to Ashley C.’s care because these services were largely the same services Ashley C.

completed in the previous legal case. Lindsey testified that despite Ashley C.’s participation in

the court-ordered services, she did not think that the risk factors that brought the children into the

Department’s care had been resolved. That is, in Lindsey’s opinion, although Ashley C.

completed her services, she had not benefitted from those services. Lindsey testified that Ashley

C. had not made enough progress, and Lindsey was concerned that the same situation might

occur yet again. In particular, Lindsey pointed to Ashley C.’s anger management issues and

Ashley C.’s failure to communicate with the Department. Ashley C. had failed to give the

Department her current address to allow for a home study or to provide proof of employment.

Lindsey therefore testified that she did not believe Ashley C. could provide a safe and stable

home for her children. Lindsey testified that it was in the children’s best interest for Ashley C.’s

parental rights to be terminated.

Lindsey also testified that Ashley C. had yet another Department case involving another

one of her children. When that child was around one-year old, he went to live with Ashley C.’s

aunt because Ashley C. was homeless. He has remained with Ashley C.’s aunt since. Lindsey

testified that Michael K. was also previously involved with the Department in 2009, regarding -3- 04-12-00558-CV

the child of a girlfriend. According to Lindsey, the Department determined that there was a risk

of physical abuse, physical neglect, and neglectful supervision.

Michael K., E.M.C.’s father, testified that his mother had brought him from Fort Worth to

Ashley C.’s home a few days before the police searched the home. When the police entered the

home, Michael K. was passed out on the floor and had to be awakened by the officers. Michael

K. claimed that he suffered from seizures and apparently had one on that day. Michael K.

testified that he knew Ashley C. had a history with the Department, but he did not believe there

was a case with regard to E.M.C. Michael K. denied that he manufactured methamphetamine

while he was in Ashley C.’s home. He claimed the ingredients found in the home were not used

to manufacture methamphetamine. Michael K. testified that he pled no contest to the charge of

manufacturing methamphetamine because his seven-year sentence for another offense “would

eat up” the six-year sentence for manufacturing methamphetamine. Michael K. testified that his

sentence would be completed in 2018.

Jennifer Harris testified that she was Ashley C.’s counselor and also her domestic

violence group facilitator. She testified that Ashley C. has anger-management issues. The service

plan goals concerned her anger management issues, complying with the Department’s requests,

and “negative drug tests.” Harris testified that Ashley C.’s steps toward compliance and negative

drug tests were successful. However, according to Harris, while Ashley C. made some progress

with her anger issues, the counseling sessions were not completely successful.

Ashley C. testified that when her children were removed in this case, she became

proactive and enrolled herself in a drug rehabilitation program. She claimed she did not have

anger-management issues with the Department, and she testified that she is employed. According

to Ashley C., the police “took things out of my medicine cabinet like alcohol and peroxide.” She

testified that the items taken were cleaning supplies and cans she used to recharge her car’s air -4- 04-12-00558-CV

conditioning unit. According to Ashley C., the meth lab was found in an abandoned car near her

property, but it was not her car and was not on her property. And, although she claimed she had

not used methamphetamine at the time the children were removed, she admitted to testing

positive for it on the day the children were removed. She also admitted to testing positive in

November 2011, but claimed she had been able to “disprove that one with a hair follicle” test.

She admitted that her psychiatrist said she has narcissistic tendencies and a bit of histrionic

behavior. She admitted that she had not given the Department her current address. According to

Ashley C., she had been living with a friend, but was now living at her house. Ashley C.

admitted to making “stupid decisions in love.”

After hearing all the evidence, the trial court terminated Michael K.’s parental rights

pursuant to section 161.001(1)(D), finding that Michael K. had knowingly placed or knowingly

allowed his child to remain in conditions or surroundings that endangered his child’s physical or

emotional well-being. The trial court also terminated Michael K.’s parental rights pursuant to

section 161.001(1)(E), finding that Michael K. had engaged in conduct or knowingly placed his

child with persons who engaged in conduct that endangered his child’s physical or emotional

well-being. And, finally, the trial court terminated Michael K.’s parental rights pursuant to

section 161.001(1)(Q), finding that Michael K. had knowingly engaged in criminal conduct that

has resulted in his (1) conviction for an offense; and (2) confinement or imprisonment, and

inability to care for the child for not less than two years from the date of filing the petition.

Additionally, the trial court found it was in E.M.C.’s best interest for Michael K.’s parental rights

to be terminated.

With respect to Ashley C., the trial court terminated her parental rights pursuant to

section 161.001(1)(D), finding that she had knowingly placed or knowingly allowed her children

to remain in conditions or surroundings that endangered her children’s physical or emotional -5- 04-12-00558-CV

well-being. The trial court also terminated Ashley C.’s parental rights pursuant to section

161.001(1)(E), finding that she had engaged in conduct or knowingly placed her children with

persons who engaged in conduct that endangered her children’s physical or emotional well-

being. Additionally, the trial court found that it was in the best interest of M.K.C.-D., S.E.C.J.,

and E.M.C. for Ashley C.’s parental rights to be terminated.

TERMINATION OF PARENTAL RIGHTS

Parental rights may be terminated only upon proof of clear and convincing evidence that

the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code, and

that termination is in the best interest of the child. 1 See TEX. FAM. CODE ANN. § 161.001 (West

Supp. 2012). If, as here, the trial court terminated the parent-child relationship on multiple

grounds under section 161.001(1), we may affirm on any one ground because, in addition to

finding that termination is in the child’s best interest, only one predicate violation under section

161.001(1) is necessary to support a termination decree. In re A.V., 113 S.W.3d 355, 362 (Tex.

2003).

SUFFICIENCY OF THE EVIDENCE

Both Michael K. and Ashley C. argue that the evidence is legally and factually

insufficient to support termination of their parental rights under section 161.001(1). Specifically,

Ashley C. and Michael K. argue that the evidence is legally and factually insufficient to support

termination under subsections (D) and (E). See TEX. FAM. CODE ANN. § 161.001(1)(D), (E).

When the legal sufficiency of the evidence is challenged, we look at all the evidence in

the light most favorable to the trial court’s finding to determine whether a reasonable trier of fact

could have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d

336, 344 (Tex. 2009). “To give appropriate deference to the factfinder’s conclusions and the role

1 We note that neither Ashley C. nor Michael K. has challenged the trial court’s best interest finding on appeal.

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of a court conducting a legal sufficiency review, looking at the evidence in the light most

favorable to the judgment means that a reviewing court must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. “A corollary to

this requirement is that a court should disregard all evidence that a reasonable factfinder could

have disbelieved or found to have been incredible.” Id. “If, after conducting its legal sufficiency

review of the record evidence, a court determines that no reasonable factfinder could form a firm

belief or conviction that the matter that must be proven is true, then that court must conclude that

the evidence is legally insufficient.” Id. at 344–45.

When a parent challenges the factual sufficiency of the evidence on appeal, we look at all

the evidence, including disputed or conflicting evidence. Id. at 345. “If, in light of the entire

record, the disputed evidence that a reasonable factfinder could not have credited in favor of the

finding is so significant that a factfinder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient.” Id. (quoting In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002)). In reviewing termination findings for factual sufficiency, we give due

deference to the factfinder’s findings and do not supplant its judgment with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

Both Ashley C. and Michael K. argue that the evidence is legally and factually

insufficient to support termination on section 161.001(1)(D) and (E) grounds because there is no

evidence that they “endangered” the children. Subsection D allows for termination of parental

rights if the parent knowingly placed or knowingly allowed the child to remain in conditions or

surroundings that endangered the child’s physical or emotional well-being. See TEX. FAM. CODE

ANN. § 161.001(1)(D) (West Supp. 2012). Subsection E allows for termination of parental rights

if the parent engaged in conduct or knowingly placed the child with persons who engaged in

conduct that endangered the child’s physical or emotional well-being. See id. § 161.001(1)(E). -7- 04-12-00558-CV

Although similar, subsections D and E differ in one respect: the source of the physical or

emotional endangerment to the child. In re D.C., 128 S.W.3d 707, 715 (Tex. App.—Fort Worth

2004, no pet.). “Under subsection (D), the environment, including the environment produced by

the parent’s conduct, is the source of endangerment to the child.” Id. “Under subsection (E), the

danger to the child is a result of the parent’s conduct, including the parent’s actions or omissions,

or failures to act.” Id.

The Texas Supreme Court has held that the word “endanger” in the context of section

161.001 of the Family Code means “to expose to loss or injury,” or “to jeopardize.” In re M.C.,

917 S.W.2d 268, 269 (Tex. 1996) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987)). With regard to subsection (D), “[a]s a general rule, conduct that subjects a

child to a life of uncertainty and instability endangers the physical and emotional well-being of a

child.” In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied); see In re

S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). Conduct of a parent in

the home can create an environment that endangers the physical and emotional well-being of a

child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). For example,

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. Id. “Illegal drug use

and drug-related criminal activity by parents and caregivers also support the conclusion that the

children’s surroundings endangered their physical or emotional well-being.” In re D.C., 128

S.W.3d at 716; see also In re J.T.G., 121 S.W.3d at 125. Finally, a fact-finder may infer from

past conduct endangering the well-being of a child that similar conduct will recur if the child is

returned to the parent. In re D.J.H., 381 S.W.3d 606, 613 (Tex. App.—San Antonio 2012, no

pet.).

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Under subsection (E), the relevant inquiry is whether evidence exists that the

endangerment of the child’s physical well-being was the direct result of the parent’s conduct,

including acts, omissions, or failures to act. In re J.T.G., 121 S.W.3d at 125. Termination under

subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and

conscious course of conduct by the parent is required. Id. However, it is not necessary that the

parent’s conduct be directed at the child or that the child actually suffer injury. Id. Drug

addiction and its effect on a parent’s life and ability to parent may establish an endangering

course of conduct. Id.

Here, there was evidence that both Michael K. and Ashley C. had prior histories with the

Department. Indeed, the Department became involved in the current case only three months after

the children had been returned to Ashley C.’s care. There was also evidence that during a search

of Ashley C.’s home, law enforcement officials discovered materials used for the manufacture of

methamphetamine. At the time the materials were discovered in the home, the children were

present. There was testimony such circumstances were a hazard for the children. There was also

testimony that materials used to manufacture methamphetamine were found in Michael K.’s car,

which was parked near the home. On the day of the search, Ashley C. tested positive for

methamphetamine. Michael K. later pled no contest to the felony offense of manufacture of a

controlled substance and was sentenced to six years imprisonment.

Michael K. and Ashley C. argue that there was no evidence methamphetamine was

actually being manufactured on the property as the items seized were used for cleaning and that

the “alleged meth lab” was in an abandoned car outside the property. Ashley C. also emphasizes

that she was never indicted for any offense related to the incident. However, the trial court as

finder of fact could have reasonably believed Deputy Nichols’s and Deanna Lindsey’s testimony

and disbelieved Ashley C.’s and Michael K.’s testimony. Thus, based on the conflicting -9- 04-12-00558-CV

evidence, the trial court could have reasonably inferred that methamphetamines were being used

and manufactured in Ashley C.’s home when the children were present.

We hold that the evidence is legally and factually sufficient to support the trial court’s

termination on subsection (D) grounds. 2 Based on the evidence, the trial court could have

reasonably concluded that (1) Ashley C. was living with the children in a home containing

materials to produce methamphetamine and that she had knowledge those materials were

present; (2) Ashley C. allowed the children to be around Michael K., who was convicted of

actually producing the methamphetamine in this case; and (3) Ashley C. tested positive for

methamphetamine on the day of the search. With regard to Michael K., the trial court could have

reasonably concluded that Michael K. knowingly placed or knowingly allowed E.M.C. to remain

in conditions that endangered his physical or emotional well-being when Michael K.

manufactured methamphetamines in Ashley C.’s home, where the children resided.

Michael K. also complains that the trial court erred in granting the Department’s request

for a trial amendment to include the subsection (Q) ground for termination. Michael K., however,

did not object to the Department’s request for a trial amendment and thus waived any error. See

City of Fort Worth v. Zimlich, 29 S.W.3d 62, 73 (Tex. 2000). Further, as we have held that there

was sufficient evidence to support termination under subsection (D), any error with respect to the

trial court granting a trial amendment would be harmless. See In re A.V., 113 S.W.3d at 362.

CONCLUSION

We therefore affirm the trial court’s Order of Termination.

Karen Angelini, Justice

2 Having so held, we need not determine whether there was sufficient evidence to terminate based on subsection (E) grounds. See In re A.V., 113 S.W.3d at 362.

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