in the Interest of R.C. and K.C., Children

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-21-00100-CV

IN THE INTEREST OF R.C. AND K.C., CHILDREN

On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 89895

Before Morriss, C.J., Stevens and Carter,* JJ. Memorandum Opinion by Justice Carter

________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment MEMORANDUM OPINION

In the lawsuit brought by the Texas Department of Family and Protective Services (the

Department), the trial court found that Father (1) knowingly placed or knowingly allowed his

children, R.C. and K.C., to remain in conditions or surroundings that endangered their physical

or emotional well-being,1 (2) contumaciously refused to submit to a reasonable and lawful order

made during the investigation of reports that R.C. and K.C. had been abused or neglected, and

(3) knowingly engaged in criminal conduct that resulted in his conviction of an offense and

confinement or imprisonment and inability to care for the children for not less than two years

from the filing date of the Department’s petition. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),

(I), (Q) (Supp.). As a result, after finding that it was in R.C.’s and K.C.’s best interests, the trial

court terminated Father’s parental rights to the children.2

On appeal, Father challenges the legal and factual sufficiency of the trial court’s Ground

D, I, and Q findings.3 We conclude that the evidence was sufficient to support the trial court’s

Ground D finding that Father knowingly placed or allowed R.C. and K.C. to remain in

conditions or surroundings that endangered their physical or emotional well-being. Because our

conclusion is dispositive of this appeal, we need not review Father’s remaining arguments as to

Grounds I and Q. Consequently, we affirm the trial court’s judgment.

1 We use the children’s initials and refer to their parents as Mother and Father to protect the children’s confidentiality. See TEX. R. APP. P. 9.8(b)(2). 2 Mother, whose parental rights were also terminated, is not a party to this appeal. 3 Father does not challenge the trial court’s best-interests finding. 2 I. The Evidence at Trial

Mother and Father had two children together at the time of trial, one-year-old K.C. and

four-year-old R.C. Diane Black, a family-based safety services worker, testified that she was

assigned to the case in December 2019, after recently born K.C. tested positive for marihuana.

According to Black, both Mother and Father tested positive for marihuana. In addition to K.C.

and her brother R.C., Mother had three more children by other men in her care, D.P., J.J., and

R.W. D.P., then three years old, tested positive for cocaine.4 As a result, the Department found

reason to believe that both Mother and Father had been neglectful in their supervision of D.P.

Father, who had a total of five children, told Black that “his [other] children had been

involved in [Child Protective Services (CPS)] cases, that he was aware of situations that they

were involved in that led to the CPS cases[,] but [that] he hadn’t done anything about it.” In a

pending CPS case opened in Red River County in 2018, Father had tested positive for

methamphetamine. Even so, Black provided a family-based safety plan to Father with the goal

of fully reuniting him with R.C. and K.C.

Black testified that Father was ordered to participate in counseling, that he attended

regularly, but that he did not make progress. According to Black, Father and Mother separated,

and by March 31, 2020, Mother began living with a man named Nicholas Buster Jackson, who

was a registered sex offender. Shortly thereafter, Mother signed a new family-based safety plan

providing that she and the children would reside with a maternal cousin and would have no

contact with Jackson.

4 Neither Mother nor Father tested positive for cocaine. 3 On April 23, 2020, Father committed intoxication assault, injuring another driver, and

sustaining serious injuries himself that required hospitalization until May. In July, the trial court

held a hearing on the Department’s “Petition for Order to Participate in Services” and ordered

Father, who was present at the hearing, to participate in random drug testing, a psychological

assessment, drug and alcohol assessments, individual and family therapy, and parenting classes,

among other things. Even so, Black said that Father tested positive for marihuana in August and

September 2020.

Black concluded that Father was on illegal drugs while he was actively involved with

R.C. and K.C. during the pendency of the family-based services case. As a result, on

October 23, 2020, the Department filed a petition to terminate Father’s parental rights to R.C.

and K.C., and in November 2020, the children were removed from Mother’s and Father’s care

and placed with Father’s cousin. After D.P.’s and R.W.’s maternal aunt received temporary

managing conservatorship of D.P. and R.W. and J.J.’s father received temporary managing

conservatorship over J.J., the Department’s petition as to those children was severed from the

case involving R.C. and K.C.

During the July term of the Lamar County grand jury, Father was indicted for

intoxication assault with a motor vehicle. After the Department’s petition was filed, Father was

jailed pending the November 2020 trial for the offense. Father eventually pled guilty to

intoxication assault with a motor vehicle and was sentenced to twelve years’ imprisonment

beginning May 28, 2021, after the trial court found that Father had previously committed another

4 felony.5 Stephanie Tatum, the Department’s caseworker, testified that Father was incarcerated

during the period when she was assigned to the case and that he did not complete his court-

ordered family service plan. Because he was incarcerated, Tatum assumed that Father was then

drug-free. Even so, Tatum believed that termination of Father’s parental rights was in the best

interests of the children, who were thriving in the paternal cousin’s care.6 Tatum added that

Mother was charged with aggravated assault with a deadly weapon in 2014, that Mother was

convicted of two counts of endangering a child in 2015, that Mother’s parental rights should also

be terminated, and that the paternal cousin wished to adopt R.C. and K.C.

Misty Ricks, a Court Appointed Special Advocate, testified that both Mother and Father

failed to complete family-based services. Ricks believed it was in the children’s best interests

that parental rights be terminated and that R.C. and K.C. remain with Father’s cousin. Father’s

cousin also testified that she would care for the children and that it was in their best interests that

Mother and Father’s parental rights be terminated.

After hearing this evidence, the trial court terminated Mother and Father’s parental rights.

As to Father, the trial court found that termination of parental rights was supported by Grounds

D, I, and Q of Section 161.001(b)(1) of the Texas Family Code.

5 Father received 191 days of jail time credit. 6 Tatum said that the children were living with Mother, not Father, during her assignment on the case, but that the case was in family-based services for nine months before the Department’s petition to terminate parental rights was filed. 5 II. Sufficient Evidence Supports the Trial Court’s Ground D Finding

A. Standard of Review

“The natural right existing between parents and their children is of constitutional

dimensions.” In the Interest of E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no

pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a

fundamental right to make decisions concerning ‘the care, custody, and control of their

children.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination

of parental rights implicates fundamental interests, a higher standard of proof—clear and

convincing evidence—is required at trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex.

2014). “This Court is therefore required to ‘engage in an exacting review of the entire record to

determine if the evidence is . . . sufficient to support the termination of parental rights.’” Id.

(quoting In re A.B., 437 S.W.3d at 500)). “[I]nvoluntary termination statutes are strictly

construed in favor of the parent.” Id. (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—

Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20)).

“In order to terminate parental rights, the trial court must find, by clear and convincing

evidence, that the parent has engaged in at least one statutory ground for termination and that

termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001 (Supp.);

In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that

‘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.’” Id. (quoting TEX. FAM. CODE ANN. §

6 101.007) (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). “This standard of proof

necessarily affects our review of the evidence.” Id.

“In our legal sufficiency review, we consider all the evidence in the light most favorable

to the findings to determine whether the fact-finder reasonably could have formed a firm belief

or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920

(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per

curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We assume

the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable

fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably

disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re J.P.B., 180

S.W.3d at 573).

“In our review of factual sufficiency, we give due consideration to evidence the trial

court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209

S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder

reasonably could have found to be clear and convincing and determine ‘whether the evidence is

such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the

. . . allegations.’” Id. (quoting In re H.R.M., 209 S.W.3d at 109 (quoting In re C.H., 89 S.W.3d

17, 25 (Tex. 2002)) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002))). “If, in light of

the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in

favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm

belief or conviction, then the evidence is factually insufficient.” Id. (quoting In re J.F.C., 96

7 S.W.3d at 266). In our analysis, “we must undertake ‘an exacting review of the entire record

with a healthy regard for the constitutional interests at stake.’” Id. (quoting In re A.B., 437

S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H., 89 S.W.3d at 26)).

“Despite the profound constitutional interests at stake in a proceeding to terminate

parental rights, ‘the rights of natural parents are not absolute; protection of the child is

paramount.’” Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T.,

872 S.W.2d 189, 195 (Tex. 1994))) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)). “A

child’s emotional and physical interests must not be sacrificed merely to preserve parental

rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.)

(citing In re C.H., 89 S.W.3d at 26)).

“Only one predicate finding under Section 161.001[b](1) is necessary to support a

judgment of termination when there is also a finding that termination is in the child’s best

interest.” Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet.

denied) (quoting In re A.V., 113 S.W.3d at 362)) (citing In re K.W., 335 S.W.3d 767, 769 (Tex.

App.—Texarkana 2011, no pet.)). “Even so, in In re N.G., the Texas Supreme Court held that

due process demands that we review the evidence supporting findings under Grounds D and E

when they are challenged on appeal because termination of parental rights under these Grounds

‘may have implications for . . . parental rights to other children.’” In re L.W., 609 S.W.3d 189,

195–96 (Tex. App.—Texarkana 2020, no pet.) (quoting In re N.G., 577 S.W.3d 230, 234 (Tex.

2019) (per curiam)). As a result, in this case, we must “focus our analysis on Ground[] D.” Id.

at 196.

8 B. Analysis of the Trial Court’s Ground D Finding

“Subsection (b)(1)(D) permits a termination when the parent has ‘knowingly placed or

knowingly allowed the child[ren] to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child[ren].’” In re L.W., 609 S.W.3d at 199 (quoting

TEX. FAM. CODE ANN. § 161.001(b)(1)(D)). “‘Endanger,’ as used in the definition of Ground[]

D . . ., ‘means to expose to loss or injury; to jeopardize.’” In re A.R., No. 06-20-00013-CV, 2020

WL 3865372, at *4 (Tex. App.—Texarkana July 9, 2020, no pet.) (mem. op.) (quoting Tex.

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

child’s environment, including the environment produced by the parent’s conduct, is the source

of endangerment to the child.” In re D.J.H., 381 S.W.3d 606, 613 (Tex. App.—San Antonio

2012, no pet.) (quoting In re D.C., 128 S.W.3d 707, 715 (Tex. App.—Fort Worth 2004, no pet.)).

Here, Father admits that the children were endangered, but argues that it was because of

Mother’s actions. Thus, he complains that he did not knowingly place or knowingly allow R.C.

and K.C. to remain in conditions or surroundings that endangered their physical or emotional

well-being. As a result of Father’s complaint, we focus our analysis on Father’s knowing

conduct.

Under a Ground D analysis, “we must examine the time before the children’s removal to

determine whether the environment itself posed a danger to [their] physical or emotional well-

being.” In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no pet.). Children are

“endangered when the environment creates a potential for danger that the parent is aware of, but

disregards.” In re N.B., No. 06-12-00007-CV, 2013 WL 1605457, at *9 (Tex. App.—Texarkana

9 May 8, 2012, no pet.) (mem. op.). “A parent does not need to know for certain that the child is

in an endangering environment . . . .” In re A.C.D., No. 04-20-00370-CV, 2021 WL 111921, at

*2 (Tex. App.—San Antonio Jan. 13, 2021, no pet.) (mem. op.) (quoting In re I.N.D., No. 04-20-

00121-CV, 2020 WL 2441375, at *3 (Tex. App.—San Antonio May 13, 2020, pet. denied)). “A

parent’s awareness of the potential for danger and a disregard of that risk is sufficient to show

endangerment.” In re R.W., 627 S.W.3d 501, 511 (Tex. App.—Texarkana 2021, no pet.).

“[U]nlawful conduct by a parent . . . can create an environment that endangers the

physical and emotional well-being of a child as required for termination under subsection (D).”

In re A.R., 2020 WL 3865372, at *4 (quoting In re C.J.B., No. 05-19-00165-CV, 2019 WL

3940987, at *6 (Tex. App.—Dallas Aug. 21, 2019, no pet.) (mem. op.)). For this reason, “illegal

drug use by a parent . . . supports the conclusion that the children’s surroundings endanger their

physical or emotional well-being.” In re L.E.S., 471 S.W.3d at 925; see In re A.J.F., No. 07-20-

00242-CV, 2021 WL 423442, at *2 (Tex. App.—Amarillo Feb. 4, 2021, no pet.) (Mother’s

illegal drug use at child’s birth was sufficient to show that parent placed the child in conditions

or surroundings that endangered the child’s physical well-being); In re J.T.G., 121 S.W.3d 117,

125 (Tex. App.—Fort Worth 2003, no pet.) (“parental and caregiver illegal drug use and drug-

related criminal activity likewise supports the conclusion that the children’s surroundings

endanger their physical or emotional well-being”). “[S]ubsection (D) permits termination [of

parental rights] based on a single act or omission [by the parent].” In re L.C., 145 S.W.3d at

797; see In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied).

10 Prior to the children’s removal, Mother and Father were in a relationship and cared for

R.C., D.P., J.J., and R.W. In December 2019, K.C. tested positive for marihuana at birth and

both Mother and Father tested positive for the same drug at that time. Also, because D.P. was in

Mother’s and Father’s care and tested positive for cocaine, the Department also found reason to

believe that Father was neglectful in his supervision of D.P.7 Even so, Father argues that, by

March 2020, “[Father] no longer lived with nor attended to the children.” Yet, because the

children all lived together, the evidence of Father’s actions prior to his March 2020 separation

from Mother showed that the children were in an environment that exposed them to drug use and

neglectful supervision while under Father’s care. See In re A.J.F., 2021 WL 423442, at *2; In re

L.E.S., 471 S.W.3d at 925; In re J.T.G., 121 S.W.3d at 125.

Additional conduct by Father committed before R.C. and K.C. were removed after the

Department’s petition was filed in October 2020 also supported the trial court’s Ground D

finding. Black’s testimony that Father tested positive for methamphetamine in 2018 and Father’s

positive drug test results during the pendency of the family-based services case showed that

Father had a history with illegal drugs. According to Black, Father was taking drugs while

actively involved with his children. Father’s illegal drug use exposed R.C. and K.C. to the

possibility that Father could be impaired or imprisoned. See In re A.R., 2020 WL 3865372, at *4

(discussing Ground E). Indeed, before the filing of the Department’s petition, Father committed

intoxication assault with a vehicle and seriously injured himself as a result, rendering him

hospitalized, unable to care for R.C. and K.C., and unable to demonstrate that he could provide

7 Even though D.P. was not Father’s child, the trial court entered orders in July 2020 requiring Father to participate in services after finding that it was necessary for the welfare and safety of all the children, including D.P. 11 the children with a safe environment by completing the family-based safety services plan put in

place before the children’s removal.8

Based on the evidence presented, a reasonable fact-finder could have concluded that the

environment created by Father’s conduct, including his drug use, created a potential for danger to

R.C.’s and K.C.’s physical and emotional well-being that Father was aware of but disregarded.

Accordingly, we find the evidence both legally and factually sufficient to support the trial court’s

finding under Ground D. As a result, we overrule Father’s first point of error, which is

dispositive of this appeal.

III. Conclusion

We affirm the trial court’s judgment.

Jack Carter Justice

Date Submitted: January 12, 2022 Date Decided: January 18, 2022

8 The record also established that Father was convicted of aggravated assault in 1997 and possession of a firearm by a felon in 2005. 12