IN THE TENTH COURT OF APPEALS
No. 10-20-00256-CV
IN THE INTEREST OF N.J.L., A CHILD
From the 249th District Court Johnson County, Texas Trial Court No. DC-D201900342
MEMORANDUM OPINION
Rico F. appeals from the trial court’s order terminating his parental rights to his
son, N.J.L. After hearing all the evidence, the trial court found by clear and convincing
evidence that Rico (1) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endanger the child, (2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangers the child, (3)
constructively abandoned the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective Services for not
less than six months, (4) failed to comply with the provisions of a court order that
specifically established the actions necessary for him to obtain the return of the child, and (5) knowingly engaged in criminal conduct that has resulted in the father's conviction of
an offense and confinement or imprisonment and inability to care for the child for not
less than two years from the date of filing the petition. TEX. FAM. CODE ANN. § 161.001 (b)
(1) (D) (E) (N) (O) (Q) (West Supp. 2019). The trial court further found by clear and
convincing evidence that termination was in the best interest of the children. TEX. FAM.
CODE ANN. § 161.001 (b) (2) (West Supp. 2019). We affirm.
BACKGROUND FACTS
N.J.L. was born in Kansas and at the time of his birth he had methamphetamine
and other drugs in his system. His mother, Patience1, voluntarily gave him to the Frost
family, and the Frosts took N.J.L. to Johnson County, Texas. Sometime after moving to
Texas, the Texas Department of Family and Protective Services became involved with
N.J.L. because of drug use by Mr. Frost and concerns of Mr. Frost’s mental health. N.J.L.
was removed from the Frosts and placed in a foster home. Brandon Frost was originally
listed as the alleged father of N.J.L. He testified at a hearing, however, that he was not
the father. Rico was later adjudicated to be the father of N.J.L.
STANDARD OF REVIEW
In six issues, Rico argues that the evidence is legally and factually insufficient to
support the trial court’s findings on each of the grounds for termination and the finding
on best interest. Only one predicate act under section 161.001 (b) (1) is necessary to
1 N.J.L.’s mother is not a party to this appeal. In the Interest of N.J.L. Page 2 support a judgment of termination in addition to the required finding that termination is
in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In conducting a
legal sufficiency review in a parental termination case:
[A] court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusion and the role 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. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)) (emphasis in J.P.B.).
In a factual sufficiency review,
[A] court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.... [T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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.
In the Interest of N.J.L. Page 3 In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (internal footnotes omitted) (alterations added).
ENDANGERMENT
In the second issue, Rico argues that the evidence is legally and factually
insufficient to support the trial court’s finding that he engaged in conduct or knowingly
placed N.J.L. with persons who engaged in conduct that endangers the physical or
emotional well-being of N.J.L. Section 161.001 (b) (1) (E) requires a finding of
endangerment. To endanger means to expose to loss or injury, to jeopardize. Texas
Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The specific danger
to a child's physical or emotional well-being need not be established as an independent
proposition, but it may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533.
Under subsection 161.001 (b) (1) (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 the Interest of E.M., 494
S.W.3d 209, 221 (Tex. App. —Waco 2015, pet. den’d). Under subsection (E) it can be either
the parent’s conduct or the conduct of a person with whom the parent knowingly leaves
the child that endangers the physical or emotional well-being of the child. In either
instance it is thus the direct result of the parent’s conduct that results in the termination
of the parental rights. It is not necessary, however, that the conduct be directed at the
child or that the child actually suffer injury. In the Interest of E.M., 494 S.W.3d at 222.
In the Interest of N.J.L. Page 4 When determining whether a parent has engaged in an endangering course of
conduct, a fact finder may consider the parent's actions and inactions that occurred both
before and after the child was born. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Evidence
of illegal drug use by a parent and its effect on a parent's life and his ability to parent may
establish an endangering course of conduct. Id. A parent's continuing drug-related
conduct can qualify as a voluntary, deliberate, and conscious course of conduct
endangering the child's well-being. Id. A parent's drug use exposes the child to the
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IN THE TENTH COURT OF APPEALS
No. 10-20-00256-CV
IN THE INTEREST OF N.J.L., A CHILD
From the 249th District Court Johnson County, Texas Trial Court No. DC-D201900342
MEMORANDUM OPINION
Rico F. appeals from the trial court’s order terminating his parental rights to his
son, N.J.L. After hearing all the evidence, the trial court found by clear and convincing
evidence that Rico (1) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endanger the child, (2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangers the child, (3)
constructively abandoned the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective Services for not
less than six months, (4) failed to comply with the provisions of a court order that
specifically established the actions necessary for him to obtain the return of the child, and (5) knowingly engaged in criminal conduct that has resulted in the father's conviction of
an offense and confinement or imprisonment and inability to care for the child for not
less than two years from the date of filing the petition. TEX. FAM. CODE ANN. § 161.001 (b)
(1) (D) (E) (N) (O) (Q) (West Supp. 2019). The trial court further found by clear and
convincing evidence that termination was in the best interest of the children. TEX. FAM.
CODE ANN. § 161.001 (b) (2) (West Supp. 2019). We affirm.
BACKGROUND FACTS
N.J.L. was born in Kansas and at the time of his birth he had methamphetamine
and other drugs in his system. His mother, Patience1, voluntarily gave him to the Frost
family, and the Frosts took N.J.L. to Johnson County, Texas. Sometime after moving to
Texas, the Texas Department of Family and Protective Services became involved with
N.J.L. because of drug use by Mr. Frost and concerns of Mr. Frost’s mental health. N.J.L.
was removed from the Frosts and placed in a foster home. Brandon Frost was originally
listed as the alleged father of N.J.L. He testified at a hearing, however, that he was not
the father. Rico was later adjudicated to be the father of N.J.L.
STANDARD OF REVIEW
In six issues, Rico argues that the evidence is legally and factually insufficient to
support the trial court’s findings on each of the grounds for termination and the finding
on best interest. Only one predicate act under section 161.001 (b) (1) is necessary to
1 N.J.L.’s mother is not a party to this appeal. In the Interest of N.J.L. Page 2 support a judgment of termination in addition to the required finding that termination is
in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In conducting a
legal sufficiency review in a parental termination case:
[A] court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusion and the role 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. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)) (emphasis in J.P.B.).
In a factual sufficiency review,
[A] court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.... [T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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.
In the Interest of N.J.L. Page 3 In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (internal footnotes omitted) (alterations added).
ENDANGERMENT
In the second issue, Rico argues that the evidence is legally and factually
insufficient to support the trial court’s finding that he engaged in conduct or knowingly
placed N.J.L. with persons who engaged in conduct that endangers the physical or
emotional well-being of N.J.L. Section 161.001 (b) (1) (E) requires a finding of
endangerment. To endanger means to expose to loss or injury, to jeopardize. Texas
Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The specific danger
to a child's physical or emotional well-being need not be established as an independent
proposition, but it may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533.
Under subsection 161.001 (b) (1) (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 the Interest of E.M., 494
S.W.3d 209, 221 (Tex. App. —Waco 2015, pet. den’d). Under subsection (E) it can be either
the parent’s conduct or the conduct of a person with whom the parent knowingly leaves
the child that endangers the physical or emotional well-being of the child. In either
instance it is thus the direct result of the parent’s conduct that results in the termination
of the parental rights. It is not necessary, however, that the conduct be directed at the
child or that the child actually suffer injury. In the Interest of E.M., 494 S.W.3d at 222.
In the Interest of N.J.L. Page 4 When determining whether a parent has engaged in an endangering course of
conduct, a fact finder may consider the parent's actions and inactions that occurred both
before and after the child was born. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Evidence
of illegal drug use by a parent and its effect on a parent's life and his ability to parent may
establish an endangering course of conduct. Id. A parent's continuing drug-related
conduct can qualify as a voluntary, deliberate, and conscious course of conduct
endangering the child's well-being. Id. A parent's drug use exposes the child to the
possibility the parent may be impaired or imprisoned and, thus, unable to take care of
the child. Walker v. Texas Dep't of Family & Protective Services., 312 S.W.3d 608, 617-18 (Tex.
App. — Houston [1st Dist.] 2009, pet. denied). Although incarceration alone will not
support termination, evidence of criminal conduct, convictions, and imprisonment may
support a finding of endangerment. Texas Department of Human Services v. Boyd, 727
S.W.2d at 533. Conduct that subjects a child to a life of uncertainty and instability
endangers the child’s physical and emotional well-being. In re S.D., 980 S.W.2d 758, 763
(Tex. App. —San Antonio 1998, pet. den’d).
Rico told the caseworker that he had a suspicion Patience was pregnant and that
he could be the father, but he did not maintain a relationship with her. Patience told the
caseworker Rico knew she was pregnant. Rico did not provide any support to Patience
during her pregnancy. Rico knew that Patience abused drugs and could not provide a
In the Interest of N.J.L. Page 5 stable home for N.J.L.; however, he did not make any attempt to protect N.J.L. Patience
left N.J.L. with the Frosts, who also exposed N.J.L. to drug use.
Rico was incarcerated for drug use at the time of the final hearing. Rico had been
incarcerated on other occasions as well indicating a history of criminal behavior. Rico
admitted to heavy drug use prior to his incarceration. Rico’s drug use and criminal
activity subject N.J.L. to a life of uncertainty and instability and show a course of conduct
that endangers N.J.L.
We find that the evidence is legally and factually sufficient to support the trial
court’s findings that Rico engaged in conduct or knowingly placed N.J.L. with persons
who engaged in conduct that endangers the child. TEX. FAM. CODE ANN. § 161.001 (b) (1)
(E) (West Supp. 2019). We overrule Rico’s second issue on appeal. Only one predicate
act under section 161.001 (b) (1) is necessary to support a judgment of termination in
addition to the required finding that termination is in the child's best interest. In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003). Because we find that the evidence is sufficient under
Section 161.001 (b) (1) (E), we have addressed the concerns of protecting Rico’s due
process and due course of law rights. See In the Interest of N.G., 577 S.W.3d 230 (Tex. 2019).
We need not address the first, third, fourth, and fifth issues on appeal.
BEST INTEREST
In the sixth issue, Rico argues that the evidence is legally and factually insufficient
to support the trial court’s finding that termination is in the best interest of N.J.L. In
In the Interest of N.J.L. Page 6 determining the best interest of a child, a number of factors have been considered,
including (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. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re S.L., 421
S.W.3d 34, 38 (Tex. App. —Waco 2013, no pet.). The Holley factors focus on the best
interest of the child, not the best interest of the parent. In re S.L., 421 S.W.3d at 38. The
goal of establishing a stable permanent home for a child is a compelling state interest. Id.
The need for permanence is a paramount consideration for a child's present and future
physical and emotional needs. Id.
N.J.L. was two years-old at the time of the final hearing and unable to express his
desires. The record shows that N.J.L. is bonded to his current caregivers, and they plan
to adopt him. There are no concerns with his current placement, and all of his needs are
being met.
Rico was incarcerated for drug use at the time of the final hearing and had a history
of incarceration and drug use. Rico admitted that he could not be a placement for N.J.L.
and told the caseworker that N.J.L. should stay in his current safe and loving home. Rico
In the Interest of N.J.L. Page 7 had no plans or ability to provide a stable home for N.J.L. Rico did not complete any of
the services offered by the Department. Although given the opportunity, Rico did not
send any gifts or cards to N.J.L., and did not request to see any pictures of N.J.L. We find
that the evidence is legally and factually sufficient to support the trial court’s finding that
termination of Rico’s parental rights was in the best interest of N.J.L. We overrule the
sixth issue.
CONCLUSION
We affirm the trial court’s order terminating the parental rights of Rico to his child,
N.J.L.
JOHN E. NEILL Justice
Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed December 30, 2020 [CV06]
In the Interest of N.J.L. Page 8