in the Interest of M.T.C. and J.R.T.C.

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00548-CV

IN THE INTEREST OF M.T.C. and J.R.T.C.

From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2015PA02147 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

Delivered and Filed: February 15, 2017

AFFIRMED

INTRODUCTION

M.C. appeals the trial court’s order terminating his parental rights to his children M.T.C.

and J.R.T.C. 1 M.C. challenges the legal and factual sufficiency of the evidence to support the trial

court’s order of termination pursuant to either of the two statutory grounds for termination under

subsections 161.001(b)(1)(D) and 161.001(b)(1)(O) of the Texas Family Code. We affirm the trial

court’s order of termination.

1 To protect the identity of the minor children, we refer to the child and the child’s parents by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). Although the trial court terminated both parents’ parental rights, this court will only discuss this case as it pertains to M.C. because he is the only parent to appeal the trial court’s order of termination. 04-16-00548-CV

BACKGROUND

The Texas Department of Family and Protective Services (“the Department”) filed its

petition in the underlying cause on October 13, 2015. In an affidavit in support of the petition

Raechelle Bibby, a Department caseworker, attests the Department became involved with

monitoring M.T.C.’s well-being in May 2014 based upon a report from his maternal aunt. Two

days prior to the report, M.T.C.’s mother left him at the aunt’s home without notification and

without waking anyone in the home, and she had not made any contact since that time. M.T.C.’s

aunt contacted the Department and reported suspicion of the mother’s drug use. M.T.C. was

removed from the mother’s care and placed with the maternal aunt, where he lived with two older

half-siblings who had been adopted by the aunt following previous termination of the mother’s

parental rights. During the Department’s involvement in the case, the mother and M.C. had

another child, J.R.T.C.

On August 11, 2016, the court proceeded with a bench trial on the case for termination of

the mother’s and M.C.’s parental rights. Both parents were represented at trial, but neither was

present. 2 At the time of trial, M.T.C. was three years old and J.R.T.C. was one year old.

After receipt of evidence and testimony, the trial court found M.C. met two grounds for

termination and that termination of his parental rights was in the children’s best interest. The trial

court entered an order terminating M.C.’s parental rights on the following statutory grounds: (1)

M.C. knowingly placed or knowingly allowed the children to remain in conditions or surroundings

which endanger their physical or emotional well-being, pursuant to Texas Family Code Section

161.001(b)(1)(D); and (2) M.C. failed to comply with the provisions of a court order that

specifically addressed the actions necessary to obtain the return of the children, pursuant to Texas

2 The record reflects M.C. was served with notice of the trial setting and was aware of the process to contact his attorney and the Department.

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Family Code Section 161.001(b)(1)(O). M.C. challenges the trial court’s findings on both

statutory grounds, asserting the evidence is legally and factually insufficient to support the trial

court’s findings. 3

STANDARD OF REVIEW

Burden of Proof

To terminate parental rights pursuant to Section 161.001 of the Texas Family Code, the

Department has the burden to prove by clear and convincing evidence that the parent’s acts or

omissions met one of the predicate grounds in Section 161.001(b)(1) and termination is in the best

interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1),(2) (West Supp. 2016); In re

J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

Because termination is complete, final, and irrevocable, proceedings should be strictly

scrutinized, and involuntary termination statutes must be strictly construed in favor of the parent.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). “[T]he evidence in support of termination must

be clear and convincing before a court may involuntarily terminate a parent’s rights.” Id.; see also

TEX. FAM. CODE ANN. § 161.206(a) (West 2014). “‘Clear and convincing evidence’ means the

measure or degree of proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.

§ 101.007 (West 2014).

“Circumstantial evidence may be sufficient to support termination.” In re R.F., 115 S.W.3d

804, 810 (Tex. App.—Dallas 2003, no pet.); In Interest of S.H.A., 728 S.W.2d 73, 86 (Tex. App.—

Dallas 1987, writ ref’d n.r.e.). Circumstantial evidence is indirect evidence that creates an

inference to establish a central fact. In re Lipsky, 460 S.W.3d 579, 588–89 (Tex. 2015); see Felker

3 The Department concedes the evidence does not support termination under the statutory ground (O). Therefore, this Court’s analysis will focus only on M.C.’s challenge with regard to statutory ground (D).

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v. Petrolon, Inc., 929 S.W.2d 460, 463–64 (Tex. App.—Houston [1st Dist.] 1996, writ denied).

All evidentiary standards, including clear and convincing evidence, recognize the relevance of

circumstantial evidence. In re Lipsky, 460 S.W.3d at 588. Therefore, in parental-rights

termination cases, the relevant inquiry is not the type of evidence, but whether the strength of the

evidence satisfies the appropriate standard of review. See id.; Bentley v. Bunton, 94 S.W.3d 561,

596-97 (Tex. 2002); In re R.F., 115 S.W.3d at 810.

Sufficiency of the Evidence Review

Legal Sufficiency

In conducting a legal sufficiency review of termination of parental rights under a clear and

convincing standard, an appellate court must view all of the evidence in the light most favorable

to the finding and determine whether a reasonable factfinder could have formed a firm belief or

conviction that the findings are true. In re J.F.C., 96 S.W.3d at 266. In viewing the evidence in

the light most favorable to the judgment, the appellate court “must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do so,” and “should

disregard all evidence that a reasonable factfinder could have disbelieved or found to have been

incredible.” Id. at 266.

However, the appellate court may not simply disregard undisputed facts that do not support

the finding; to do so would not comport with the Department’s heightened burden of proof by clear

and convincing evidence. Id. If, after conducting its legal-sufficiency review of all the evidence,

a court determines no reasonable factfinder could form a firm belief or conviction consistent with

the final judgment, then the court must conclude the evidence is legally insufficient. Id. at 266.

Factual Sufficiency

When reviewing a factual sufficiency challenge under a clear and convincing standard, the

analysis is somewhat different in that the appellate court must consider all of the evidence equally, -4- 04-16-00548-CV

both disputed and undisputed. Id. The appellate court must determine whether the disputed

evidence is such that a reasonable fact finder could have formed a firm conviction or belief about

the truth of the Department’s allegations. Id. The appellate court must hold the evidence to be

factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment

is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor

of the ultimate finding. Id.; In re A.S., 261 S.W.3d 76, 82 (Tex. App.—Houston [14th Dist.] 2008,

pet. denied).

ANALYSIS

On appeal, M.C. contends there is no evidence that he knew about the mother’s drug use;

there is no evidence he used drugs; and there is no evidence he had been part of the children’s

environment prior to their removal.

The statutory ground for termination found in 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. TEX.

FAM. CODE ANN. § 161.001(b)(1)(D). In an involuntary termination proceeding, endangerment

means to expose a child to loss or injury or to jeopardize a child’s emotional or physical well-

being. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Under subsection

(D), the relevant inquiry is whether the environment of the children was the source of

endangerment to the children’s physical or emotional well-being, although parental conduct can

be a factor that contributes to this environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.).

When considering parental conduct, danger to the child’s well-being may be inferred from

parental misconduct alone. See Boyd, 727 S.W.2d at 533–34; In re D.J.C., 04-16-00564-CV, 2016

WL 7379248, at *6 (Tex. App.—San Antonio Dec. 21, 2016, no. pet. h.) (mem. op.). “As a general -5- 04-16-00548-CV

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) (quoting In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet.

denied)). Moreover, illegal or inappropriate conduct by a parent in the child’s home inherently

produces an environment that endangers the physical or emotional well-being of a child. In re

S.H., 04-15-00054-CV, 2015 WL 3998888, at *3 (Tex. App.—San Antonio July 1, 2015, no pet.)

(mem. op.); In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). “[T]he

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.” In re J.O.A., 283 S.W.3d 336, 345

(Tex. 2009); see In re D.J.C., 2016 WL 7379248, at *6. The relevant period for review of conduct

and environment supporting termination under statutory ground D is before the Department

removes the child. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re A.L.H., 468 S.W.3d at

746–47; In re J.R., 171 S.W.3d 558, 569 (Tex. App.—Houston [14th Dist.] 2005, no writ).

“Subsection D is not a basis for terminating parental rights if the parent was unaware of

the endangering environment.” In re Z.C.J.L., 14–13–00115–CV, 2013 WL 3477569, at *12 (Tex.

App.—Houston [14th Dist.] July 9, 2013, no pet.) (mem. op.); see also In re T.H., 131 S.W.3d

598, 603 (Tex. App.—Texarkana 2004, pet. denied). Therefore, even if clear and convincing

evidence supports the trial court’s finding that the environment posed a danger to the child’s well-

being, the Department must show that the parent knew of the danger or, at the least, the parent was

aware of a potential danger, but disregarded the risk. In re A.L.H., 468 S.W.3d at 746; In re C.L.C.,

119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.).

The Evidence

To establish basis for termination, the Department relied upon the testimony of a sole

witness, Asta Bilderback, the Department’s caseworker. M.C.’s attorney cross-examined Ms. -6- 04-16-00548-CV

Bilderback, but presented no controverting evidence or witnesses to testify on M.C.’s behalf. Ms.

Bilderback’s testimony establishes the following:

At the time the Department became involved, M.C. was married to the mother; however,

he was not living with the family because in 2012 he was convicted of indecency with a child

by sexual contact and received probation. The terms of M.C.’s probation require that he register

as a lifetime sex offender and prohibit him from being in the presence of children, including his

own.

During the Department’s involvement, M.C. and the mother had a second child, J.R.T.C.

The mother and J.R.T.C. tested positive for amphetamine when J.R.T.C. was born, and at birth

he was placed with the same aunt as M.T.C. and his half-siblings. The mother has a history of

drug use. During the pendency of the case, the mother received treatment for drug addiction,

but after several months she relapsed into methamphetamine use and was dismissed from a

treatment home. The Department received conservatorship of the children on November 4,

2015.

M.C. complied with the terms of his family service plan and his probation terms. Before

the children’s removal and during the pendency of the case, M.C. provided the mother financial

support for a place to live. M.C. alerted Ms. Bilderback to the mother’s potential relapse into

drug use because she “cleaned out” his bank account. At the time of the bench trial, the children

had bonded with their aunt and two older half-siblings, and their aunt and her husband were

willing to adopt them and could provide for their needs.

The appellate record reflects that in each of the hearings held prior to the termination

hearing, M.C. was present. Further, the facts presented create circumstantial evidence that M.C.

was aware of the mother’s drug addiction during their marriage and during the pendency of the

case because it was discussed during the status hearings. In addition, M.C. was aware the mother -7- 04-16-00548-CV

was in a drug therapy program prior to the children’s removal from her home, as it was part of the

family service plan, and he alerted the Department to her potential relapse.

Application

Upon review of the evidence presented and application of strict scrutiny, we must conclude

the record evidence and testimony presented clear and convincing evidence that M.C. knowingly

placed or allowed the children to remain in conditions or surroundings which endangered their

physical or emotional well-being.

Circumstantial evidence indicates M.C. knew of the mother’s drug addiction during their

marriage and knew of her relapse prior to J.R.T.C.’s birth. M.C.’s criminal conviction and

subsequent designation as a lifetime registered sex offender, coupled with the terms of his

probation that prohibit him from having contact with his children, required that his children be

placed in the mother’s home. M.C. remained in contact with the mother and fathered J.R.T.C.

after M.T.C. had been removed, thereby disregarding the risk posed to J.R.T.C. Therefore, M.C.’s

own conduct placed the children in an endangering environment.

While the record also reflects M.C. alerted the Department to her potential relapse and

financially supported the mother and the children, the consequences of M.C.’s illegal actions prior

to removal of the children created a life of uncertainty and instability for them. See In re J.O.A.,

283 S.W.3d at 345; In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).

Danger to the children’s well-being may be inferred from this criminal misconduct, alone. See

Boyd, 727 S.W.2d at 533–34; In re A.L.H., 468 S.W.3d at 746; In re D.J.C., 2016 WL 7379248,

at *6.

We have thoroughly reviewed the evidence in this case. Based upon this evidence, both

direct and circumstantial, it was reasonable for the trial court to find that M.C. knowingly placed

the children in an endangering environment or that he knowingly allowed the children to remain -8- 04-16-00548-CV

in an endangering environment through his own misconduct coupled with his knowledge of the

mother’s drug use. See In re A.L.H., 468 S.W.3d at 746–47; In re J.R., 171 S.W.3d at 570; see

also In re C.J., 05-98-01797-CV, 2001 WL 423279, at *6 (Tex. App.—Dallas Apr. 26, 2001, no

pet.) (mem. op.). Consequently, we conclude the evidence is legally sufficient to support

termination under statutory ground D.

The evidence presented was undisputed. Therefore, there can be no disputed evidence

contrary to the judgment so significant that a reasonable factfinder could not have resolved that

disputed evidence in favor of the ultimate finding. See In re J.F.C., 96 S.W.3d at 266; In re A.S.,

261 S.W.3d at 82. Consequently, based upon the same evidence and conclusions discussed, the

evidence is also factually sufficient to support the trial court’s termination findings under Family

Code Section 161.001(b)(1)(D). See In re J.F.C., 96 S.W.3d at 266; In re A.S., 261 S.W.3d at 82.

We overrule M.C.’s first issue on appeal.

CONCLUSION

Based on the foregoing reasons, we conclude the evidence is sufficient to support the

termination of M.C.’s parental rights pursuant to statutory ground 161.001(b)(1)(D). Therefore,

we affirm the trial court’s judgment terminating M.C.’s parental rights to the children, M.T.C. and

J.R.T.C.

Irene Rios, Justice

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