IN THE TENTH COURT OF APPEALS
No. 10-16-00197-CV
IN THE INTEREST OF O.D.M.S. AND N.S., CHILDREN
From the County Court at Law No. 2 Johnson County, Texas Trial Court No. CC-D20140312
MEMORANDUM OPINION
Angelica appeals from a judgment that terminated her parental rights to her
children, O.D.M.S. and N.S. TEX. FAM. CODE ANN. § 161.001(b) (West 2014). Because we
find that the evidence was legally and factually sufficient as to at least one
predicate ground and that termination was in the best interest of the children, we affirm
the judgment of the trial court.
After a bench trial, the trial court found that Angelica had committed the predicate
grounds as set forth in Section 161.001(b)(1)(D), (E), and (R) and that termination was in
the children's best interest. In three issues, Angelica complains that the evidence was
legally and factually insufficient to support the finding that she committed any of the
predicate grounds; and in a fourth issue, she contends the evidence is legally and factually insufficient to support the finding that termination was in the children's best
interest.
In order to terminate the parent-child relationship, there must be clear and
convincing evidence that the parent committed one or more of the grounds specifically
set forth in Texas Family Code Section 161.001(b)(1) and that termination is in the child's
best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1), (2); .206(a) (West 2014). Evidence
is clear and convincing if it "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). We review the legal and factual sufficiency of the evidence
to support a predicate ground pursuant to the well-recognized standards enunciated in
In re J.P.B. and In re J.F.C. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002).
ENDANGERMENT UNDER (E)
Subsection (E) of Section 161.001(b)(1) requires proof of endangerment, which
means exposing a child to loss or injury or jeopardizing a child's emotional or physical
health. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). With respect
to subsection (E), the endangerment must be the direct result of the parent's conduct and
must be the result of a conscious course of conduct rather than a single act or omission.
In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); In re J.W.,
152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied). Although an endangerment
finding 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 parent's conduct be
In the Interest of O.D.M.S. and N.S., Children Page 2 directed at the child or that the child actually suffer injury; rather, it is sufficient if the
conduct endangers the emotional well-being of the child. See In re J.O.A., 283 S.W.3d 336,
345 (Tex. 2009); Boyd, 727 S.W.2d at 533.
"Because it exposes the child to the possibility that the parent may be impaired or
imprisoned, illegal drug use may support termination under section 161.001(1)(E)."
Walker v. Tex. Dep't Fam. & Prot. Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied). Additionally, although imprisonment, standing alone, does not
constitute "engaging in conduct which endangers the emotional or physical well-being of
the child," it is a fact for the trial court to consider on the issue of endangerment. See Boyd,
727 S.W.2d at 533-34; In the Interest of S.F., 32 S.W.3d 318, 322 (Tex. App.—San Antonio
2000, no pet.).
Relevant Facts
At the time the children were removed from Angelica’s care, O.D.M.S. was just
over one year old and N.S. was just under one month old. Angelica admitted to smoking
marijuana while pregnant with N.S. and while pregnant with O.D.M.S. She also admitted
that O.D.M.S. tested positive for marijuana when he was born. During the time she was
pregnant with N.S., Angelica also admitted to smoking marijuana outside her house
while O.D.M.S. was napping in the house. She did not, however, believe that smoking
marijuana outside while O.D.M.S. was inside endangered O.D.M.S. Angelica admitted
to going to a drug dealer’s house, whose full name she would not reveal, to buy marijuana
while pregnant with N.S. At the time of trial, however, Angelica had not tested positive
for drugs for almost a year.
In the Interest of O.D.M.S. and N.S., Children Page 3 Further, at the time of trial, Angelica was incarcerated for the offense of possession
of methamphetamine and would not be released from confinement for another nine
months. She denied, however, that the methamphetamine was hers and did not believe
that her conviction was contrary to the children’s welfare and best interest.
Conclusion
Based on this record and viewing the evidence using the referenced standards for
the legal and factual sufficiency of the evidence, we find that the evidence was sufficient
for the trial court to have found by clear and convincing evidence that Angelica engaged
in conduct that endangered the children's physical or emotional well-being. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(E) (West 2014). Angelica’s second issue is overruled.
Because only one predicate ground under Section 161.001(1) is necessary to
support a judgment of termination when there is also a finding that termination is in the
child's best interest, we need not discuss Angelica’s first and third issues. See In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003).
BEST INTEREST
In her fourth issue, Angelica complains that the evidence was legally and factually
insufficient for the trial court to have found that the termination of the parent-child
relationship was in the best interest of O.D.M.S. and N.S. In determining the best interest
of a child, a number of factors have been considered which have been set out in the Texas
Supreme Court’s opinion, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is
not exhaustive, but simply indicates factors that have been or could be pertinent. Id. The
Holley factors focus on the best interest of the child, not the best interest of the parent.
In the Interest of O.D.M.S. and N.S., Children Page 4 Dupree v. Tex. Dep't Prot. & Reg. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no
writ). The goal of establishing a stable permanent home for a child is a compelling state
interest. Id. at 87.
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IN THE TENTH COURT OF APPEALS
No. 10-16-00197-CV
IN THE INTEREST OF O.D.M.S. AND N.S., CHILDREN
From the County Court at Law No. 2 Johnson County, Texas Trial Court No. CC-D20140312
MEMORANDUM OPINION
Angelica appeals from a judgment that terminated her parental rights to her
children, O.D.M.S. and N.S. TEX. FAM. CODE ANN. § 161.001(b) (West 2014). Because we
find that the evidence was legally and factually sufficient as to at least one
predicate ground and that termination was in the best interest of the children, we affirm
the judgment of the trial court.
After a bench trial, the trial court found that Angelica had committed the predicate
grounds as set forth in Section 161.001(b)(1)(D), (E), and (R) and that termination was in
the children's best interest. In three issues, Angelica complains that the evidence was
legally and factually insufficient to support the finding that she committed any of the
predicate grounds; and in a fourth issue, she contends the evidence is legally and factually insufficient to support the finding that termination was in the children's best
interest.
In order to terminate the parent-child relationship, there must be clear and
convincing evidence that the parent committed one or more of the grounds specifically
set forth in Texas Family Code Section 161.001(b)(1) and that termination is in the child's
best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1), (2); .206(a) (West 2014). Evidence
is clear and convincing if it "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). We review the legal and factual sufficiency of the evidence
to support a predicate ground pursuant to the well-recognized standards enunciated in
In re J.P.B. and In re J.F.C. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002).
ENDANGERMENT UNDER (E)
Subsection (E) of Section 161.001(b)(1) requires proof of endangerment, which
means exposing a child to loss or injury or jeopardizing a child's emotional or physical
health. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). With respect
to subsection (E), the endangerment must be the direct result of the parent's conduct and
must be the result of a conscious course of conduct rather than a single act or omission.
In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); In re J.W.,
152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied). Although an endangerment
finding 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 parent's conduct be
In the Interest of O.D.M.S. and N.S., Children Page 2 directed at the child or that the child actually suffer injury; rather, it is sufficient if the
conduct endangers the emotional well-being of the child. See In re J.O.A., 283 S.W.3d 336,
345 (Tex. 2009); Boyd, 727 S.W.2d at 533.
"Because it exposes the child to the possibility that the parent may be impaired or
imprisoned, illegal drug use may support termination under section 161.001(1)(E)."
Walker v. Tex. Dep't Fam. & Prot. Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied). Additionally, although imprisonment, standing alone, does not
constitute "engaging in conduct which endangers the emotional or physical well-being of
the child," it is a fact for the trial court to consider on the issue of endangerment. See Boyd,
727 S.W.2d at 533-34; In the Interest of S.F., 32 S.W.3d 318, 322 (Tex. App.—San Antonio
2000, no pet.).
Relevant Facts
At the time the children were removed from Angelica’s care, O.D.M.S. was just
over one year old and N.S. was just under one month old. Angelica admitted to smoking
marijuana while pregnant with N.S. and while pregnant with O.D.M.S. She also admitted
that O.D.M.S. tested positive for marijuana when he was born. During the time she was
pregnant with N.S., Angelica also admitted to smoking marijuana outside her house
while O.D.M.S. was napping in the house. She did not, however, believe that smoking
marijuana outside while O.D.M.S. was inside endangered O.D.M.S. Angelica admitted
to going to a drug dealer’s house, whose full name she would not reveal, to buy marijuana
while pregnant with N.S. At the time of trial, however, Angelica had not tested positive
for drugs for almost a year.
In the Interest of O.D.M.S. and N.S., Children Page 3 Further, at the time of trial, Angelica was incarcerated for the offense of possession
of methamphetamine and would not be released from confinement for another nine
months. She denied, however, that the methamphetamine was hers and did not believe
that her conviction was contrary to the children’s welfare and best interest.
Conclusion
Based on this record and viewing the evidence using the referenced standards for
the legal and factual sufficiency of the evidence, we find that the evidence was sufficient
for the trial court to have found by clear and convincing evidence that Angelica engaged
in conduct that endangered the children's physical or emotional well-being. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(E) (West 2014). Angelica’s second issue is overruled.
Because only one predicate ground under Section 161.001(1) is necessary to
support a judgment of termination when there is also a finding that termination is in the
child's best interest, we need not discuss Angelica’s first and third issues. See In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003).
BEST INTEREST
In her fourth issue, Angelica complains that the evidence was legally and factually
insufficient for the trial court to have found that the termination of the parent-child
relationship was in the best interest of O.D.M.S. and N.S. In determining the best interest
of a child, a number of factors have been considered which have been set out in the Texas
Supreme Court’s opinion, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is
not exhaustive, but simply indicates factors that have been or could be pertinent. Id. The
Holley factors focus on the best interest of the child, not the best interest of the parent.
In the Interest of O.D.M.S. and N.S., Children Page 4 Dupree v. Tex. Dep't Prot. & Reg. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no
writ). The goal of establishing a stable permanent home for a child is a compelling state
interest. Id. at 87. The need for permanence is a paramount consideration for a child's
present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex.
App.—Dallas 1987, writ ref'd n.r.e.) (en banc).
The children were very young when removed from Angelica’s care. At a little over
a year old, O.D.M.S. was non-verbal, socially detached, and cried a lot. Both children
were placed in the same foster home. In foster care, O.D.M.S. has made “tremendous
improvement” and N.S. is a “social butterfly.” Angelica has no family support. At the
time of the trial, she was incarcerated for possession of methamphetamine and had no
place to keep the children for the next nine months. Although she could not complete
some aspects of the service plan provided by the department because she was in jail,
Angelica did not complete any part of the service plan. Further, she would not give the
name of her marijuana dealer, did not think marijuana should be illegal, and did not think
a home where marijuana was smoked could endanger a child.
Considering the Holley factors applying the above referenced legal standards, we
find that the evidence was legally and factually sufficient for the court to have found that
termination of the parent-child relationship was in the best interest of O.D.M.S. and N.S.
Angelica’s fourth issue is overruled.
In the Interest of O.D.M.S. and N.S., Children Page 5 CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed December 8, 2016 [CV06]
In the Interest of O.D.M.S. and N.S., Children Page 6