In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-18-00429-CV ____________________
IN THE INTEREST OF T.S. AND A.S.
_______________________________________________________ ______________
On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 17-09-10731-CV ________________________________________________________ _____________
MEMORANDUM OPINION
In three appellate issues, Father challenges the trial court’s judgment
terminating his parental rights to his children, “Anne” and “Tim.” 1 Following a
bench trial, which occurred in August 2018, the trial court terminated Father’s
parental rights to his two children after finding that terminating his rights to them
would be in their best interest. 2 In three issues, Father complains there was not
1 To protect the identity of the minor children that are discussed in the opinion, we have used pseudonyms for their names, as well as their parents and other members of their family. See Tex. R. App. P. 9.8(a), (b). 2 See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). 1 enough evidence admitted in the trial to support the trial court’s conclusion (1) that
he endangered Anne or Tim, (2) that he failed to comply with the provisions of a
court-ordered, parenting plan,3 or (3) that terminating his parental rights to his two
children would be in each child’s best interest. 4 Because the testimony and other
evidence admitted in the trial are sufficient to support the findings that Father
challenges in his appeal, we affirm.
Background
In the spring of 2017, Mother, with her children, left Father. Several months
later, she and her children began living with her boyfriend. In September 2017, when
Anne was three and Tim was two, the Texas Department of Family and Protective
Services opened an investigation to determine who had abused the children while
they were living in the boyfriend’s home. The Department opened its investigation
upon learning that Mother had taken Anne and Tim to the hospital, where they were
treated for serious injuries like fractured bones and bruises over their bodies. Given
the injuries, the hospital that initially treated the children then transferred them to a
hospital where they received a higher level of care. The second hospital placed the
children into intensive care.
3 See id. § 161.001(b)(1)(E), (O). 4 See id. § 161.001(b)(2). 2 Two of the Department’s investigators who worked on Anne’s and Tim’s case
testified during the trial. The first investigator involved in the case explained that
she saw the children on the same day they were treated in the emergency room. The
next day, the first investigator contacted Father and informed him that Anne and Tim
had been hospitalized because they had suffered serious injuries while living at
Mother’s boyfriend’s home. According to the first investigator, Father became “irate
[after] hear[ing] the news.” The investigator also testified that during her telephone
call with Father, he threatened to harm Mother. The investigator stated that she
immediately contacted the police to let them know that Father was coming to the
hospital and that he had verbally threatened to harm Mother.
The first investigator explained that over the course of the Department’s
investigation, Mother told her that when she and Father had lived together, Father
shook Anne and Tim to make them stop crying. Mother also told the investigator
that Father beat her while the children were present.
On September 6, 2017, the Department sued Mother and Father. In its petition
the Department requested that the trial court terminate Mother’s and Father’s
parental rights to Anne and Tim. The day the suit was filed, the trial court signed an
emergency temporary order, naming the Department as Anne’s and Tim’s sole
managing conservator. Following a full adversarial hearing in mid-September 2017,
3 the trial court signed a temporary order that sets out the requirements Mother and
Father had to meet to have the children returned to their care. The temporary orders
required that Mother and Father comply with a parenting plan.
In late August 2018, five days before a trial to the bench occurred, Mother
signed an affidavit voluntarily relinquishing her parental rights over Anne and Tim.
Six witnesses, including Mother, testified during the trial. While Father appeared
through counsel at the trial, he was not there in person and he did not testify in the
trial by deposition or by other means, such as a teleconference. There was no
evidence in the trial showing that Father caused the injuries that resulted in the
hospitalizations that led the Department to sue. When the trial ended, the trial court
found that Father engaged in the conduct described in subsections E and O of the
Texas Family Code. 5 The court also found that terminating Father’s and Mother’s
parental rights would be in each child’s best interest,6 and it appointed the
Department to be each child’s managing conservator.
5 See id. § 161.001(b)(1)(E), (O). 6 See id. §§ 161.001(b)(2), 161.001(b)(1)(K).
4 Analysis
A. Standard of Review
In his appeal, Father challenges the legal and factual sufficiency of the
evidence on which the trial court relied to terminate his parental rights to Anne and
to Tim. 7 To involuntarily terminate a parent’s rights, the factfinder must conclude,
by clear and convincing evidence, that (1) the parent committed one or more of the
prohibited acts or omissions listed in section 161.001(b)(1) of the Family Code, and
that (2) terminating the parent’s rights to his child is in the child’s best interest.8
Section 161.001(b)(1) currently lists twenty-one grounds authorizing trial courts to
terminate a parent-child relationship.9 When terminating the parent-child
relationship is in the child’s best interest, the Department need only prove that one
of the statutory grounds exist to justify terminating the relationship. 10
Father raises legal and factual sufficiency claims in the arguments he
presented in his brief. In reviewing a legal sufficiency challenge to a trial court’s
7 Mother did not appeal from the judgment terminating her rights. 8 See id. § 161.001(b)(1), (b)(2). 9 See id. § 161.001(b)(1). 10 See In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014).
5 decision terminating the parent-child relationship, appellate courts must consider 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.’” 11 In doing so, we must assume that the factfinder resolved disputed facts
in a manner that favors its finding, if a reasonable factfinder could have done so, and
we must also disregard all evidence that a reasonable factfinder could have, by
inference, disbelieved or found incredible. 12 Should the appellate court determine
that a reasonable factfinder could reasonably form a firm belief or conviction that
the matter that must be proven is true, it must conclude that legally sufficient
evidence supports the finding that the parent has complained about in the appeal. 13
In reviewing Father’s factual sufficiency arguments, we consider and weigh
all the evidence in the record, including disputed and conflicting evidence.14 “‘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
11 In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). 12 In re J.F.C., 96 S.W.3d at 266. 13 See In re J.L., 163 S.W.3d at 85. 14 In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
6 reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient.’” 15 When conducting a factual sufficiency review, the appellate court
must give due deference to the factfinder’s findings, and it must avoid substituting
its own judgment for that of the factfinder.16
B. Analysis—Arguments about whether Father’s conduct endangered Anne’s
and Tim’s physical or emotional well-being
In his first issue, Father argues the Department failed to prove that he engaged
in conduct or knowingly placed Anne and Tim with persons who engaged in conduct
that endangered their physical or emotional well-being. 17 Section 161.001(b)(1)(E)
authorizes factfinders to consider both a parent’s direct and indirect conduct in
deciding whether a father knowingly exposed his child to loss, to injury, or to
circumstances that jeopardized the child’s emotional or physical health. 18
Under both the legal and factual sufficiency standards of review, we focus on
whether the record from the trial included evidence establishing that the child’s well-
15 Id. (quoting In re J.F.C., 96 S.W.3d at 267). 16 See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 17 Tex. Fam. Code Ann. § 161.001(b)(1)(E). 18 In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
7 being was endangered as a “direct result of the parent’s conduct, including acts,
omissions, or failures to act.” 19 Generally, the evidence must show that a parent’s
acts or conduct that affected his child’s well-being were done voluntarily or
knowingly, as opposed to accidentally. 20 In deciding if a parent acted knowingly as
opposed to accidentally, the factfinder may consider actions and inactions by the
parent that affected the child’s well-being both before and after the child was born.21
Under Texas law, “[w]hile endangerment often involves physical endangerment, the
statute does not require that conduct be directed at a child or that the child actually
suffer injury; rather, the specific danger to the child’s well-being may be inferred
from the parent’s misconduct alone.”22 Generally, evidence showing that a parent
engaged in conduct that created a life of uncertainty and instability for the child is
19 In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). 20 See Tex. Fam. Code. Ann. § 161.001(b)(1)(E). 21 In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.—El Paso 2012, no pet.). 22 In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987)).
8 the type of conduct from which a factfinder can reasonably infer a parent’s conduct
endangered the child’s physical and emotional well-being.23
The first of the two investigators who worked on Anne’s and Tim’s case
testified in the trial that she thought that Father was a “very violent person” based
on her investigation in the case. She explained that during her investigation, she
learned that Father had a criminal history that involved assaults against people who
were members of his family and against people who were not. In deciding whether
a parent-child relationship should be terminated, the factfinder may consider
evidence of “[d]omestic violence, want of self control, and propensity for violence”
“as evidence of endangerment.” 24 During the trial, Mother also addressed Father’s
tendency toward violence. She testified that Father, when she was living with him,
“was very abusive to me.” For example, she stated that Father assaulted her after
Anne and Tim were born and before she left him in the spring of 2017. According
to Mother, Father punched her, pushed her, hit her, choked her, and threw her into
walls, and this type of conduct occurred while Anne and Tim were present. Mother
23 In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). 24 In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
9 testified that after she separated from Father, Father told her stepmother that he was
going to kill or hurt Mother. Mother explained that she obtained a protective order
against Father because of Father’s threats. She also stated that Father never took care
of the children while she was living with him, and she felt that her children did not
need to be around someone with Father’s violent traits.
The court-appointed special advocate testified in the trial. She explained that
she met with Father during the Department’s investigation into Anne’s and Tim’s
case. She addressed Father’s behavior during her testimony, explaining that she was
concerned about the children based on her perception of Father’s “erratic and
aggressive behavior.” A Department caseworker, who worked with Mother and
Father on their parenting plans, testified that Father sent her threatening text
messages. The caseworker also testified that Father cursed her during phone calls,
but that he never threatened her personally with harm. A community-supervision
officer from Brazos County testified that Father had been under her supervision since
2014. According to the officer, on more than one occasion, Father told her that he
was an FBI agent. The officer also stated that Father “sent [her] an e-mail [ ] saying
that I’m going to take down the President of this country.” During her testimony,
she explained that she was concerned about Father’s mental health and that “[Father]
is a threat to society.”
10 There was also evidence admitted during the trial showing that Father had a
long-term history of abusing drugs. A parent’s use of drugs and its effect on the
parent’s ability to raise a child in an environment that threatens the child’s well-
being “may qualify as an endangering course of conduct.” 25 “Because [drug use]
exposes the child to the possibility that the parent may be impaired or imprisoned,
illegal drug use may support termination under [subsection E].” 26
According to the testimony given by the second of the Department’s
investigators who worked on Anne’s and Tim’s case, Father admitted to having a
history of substance abuse involving the use of marijuana, methamphetamine, and
prescription medications. Father told her that he began using illegal substances when
he was about sixteen years old. Mother also testified about Father’s drug use. Mother
testified that when she and Father lived together, she observed Father “under the
influence a lot.” According to Mother, Father was often under the influence of illegal
substances while their children were present. The testimony in the trial reveals that
after the Department sued, Father took only one of fourteen court-ordered drug tests.
In the test the Department obtained, Father tested positive for both marijuana and
25 See In re J.O.A., 283 S.W.3d at 345 (citing In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.)). 26 Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). 11 methamphetamine. The Department also established that Father did not complete a
drug assessment class, a requirement based on Father’s court-ordered, parenting
plan.
The testimony in the trial also addressed Father’s criminal behavior after the
Department filed suit. Under Texas law, “[e]vidence of criminal conduct,
convictions, or imprisonment is relevant to a review of whether a parent engaged in
a course of conduct that endangered the well-being of the child.”27 There is
testimony in the record showing that Father was jailed and charged with assaults that
did not involve family members during a large portion of the time after the
Department filed suit. While a parent’s imprisonment alone does not constitute an
endangering course of conduct, a factfinder may weigh it, along with the other
relevant evidence admitted during trial, when deciding whether the parent
endangered the child’s well-being.28
The testimony in the trial shows that Father’s history of criminal behavior
dates to 2012. The Department’s investigation revealed that Father was placed on
community supervision following a 2012 felony offense for retaliating against the
27 In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied.) (citing In re S.R., 452 S.W.3d at 360). 28 In re S.M., 389 S.W.3d at 492.
12 police officer that arrested him. The testimony of Father’s probation officer shows
that Father violated the conditions of his community supervision by being charged
with two crimes, threatening to harm Anne and Tim’s maternal grandmother and
aggravated assault, an assault that involved two women who are not members of
Father’s family.
Given the evidence before the trial court, we find that a reasonable factfinder
could have formed a firm belief or conviction that Father engaged in conduct that
endangered Anne’s and Tim’s physical or emotional well-being. Because the
evidence is legally and factually sufficient to support the trial court’s finding that
Father violated the endangerment provision in subsection (E), we overrule Father’s
first issue. 29
C. Analysis—Anne’s and Tim’s Best Interest
In his third issue, Father argues the record fails to show that terminating his
parental rights to Anne and Tim is in their best interest. In a parental-rights
29 We need not address Father’s second issue, which challenges whether the evidence supports the trial court’s finding that he violated his parenting plan, to resolve the appeal. See Tex. R. App. P. 47.1 (requiring the appellate court’s opinion to address each issue necessary to the resolution of the appeal). Under Texas law, evidence sufficient to support a finding that a parent violated any one of the twenty- one statutory grounds authorizing the termination of a parent’s rights, when coupled with a best-interest finding, authorizes the trial court to render a judgment terminating a parent-child relationship. See In re S.M.R. 434 S.W.3d at 580.
13 termination case, the Department must establish by clear and convincing evidence
that terminating a parent’s rights to his child is in the child’s best interest. 30 “In
determining whether the evidence is legally sufficient to support a best-interest
finding, we ‘consider the evidence that supports a deemed finding regarding best
interest and the undisputed evidence,’ and ignore evidence a fact-finder could
reasonably disbelieve.” 31 There is a “rebuttable presumption that the appointment of
the parents of a child as joint managing conservators” will serve the child’s best
interest. 32 That said, courts must also presume that a prompt and permanent
placement of a child in a safe environment is in the child’s best interest.33 In
reviewing a best-interest finding, we consider the nine non-exhaustive factors
identified by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976).34
30 Tex. Fam. Code Ann. § 161.001(b)(2); see also In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012). 31 In re E.N.C., 384 S.W.3d at 807 (quoting J.F.C., 96 S.W.3d at 268). 32 Tex. Fam. Code Ann. § 153.131(b) (West 2014); see also In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presumption” exists favoring keeping a child with its parent). 33 Tex. Fam. Code Ann. § 263.307(a) (West Supp. 2018). 34 In Holley, the Texas Supreme Court applied these factors in reviewing a best-interest finding: 14 We have already explained that the evidence in the trial shows that Father had
a history of criminal behavior and a history of substance abuse. During the trial,
Mother testified that Father did little to care for the children when she lived with
him. According to Mother, Father was often under the influence of illegal drugs.
Mother also testified that Father assaulted her while the children were present. The
evidence also shows that Father had little contact with the children after the
Department removed the children because he was in and out of jail. The trial court
• the child’s desires;
• the child’s emotional and physical needs, now and in the future;
• the emotional and physical danger to the child, now and in the future;
• the parenting abilities of the parties seeking custody;
• the programs available to assist the parties seeking custody;
• the plans for the child by the parties seeking custody;
• the stability of the home or the proposed placement;
• the parent’s acts or omissions, which may indicate that the existing parent-child relationship is improper;
• any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
15 also heard testimony that Anne and Tim have special needs, and that their needs
were being met by their respective foster parents. The court-appointed special
advocate testified that Anne and Tim are in stable foster homes, that she has visited
the homes, and that she thought Anne and Tim were doing “very, very, very well.”
From the evidence relevant to Father’s propensity for violence, his long-term
substance abuse, the fact that he has been in and out of jail, and that he never took
much of a role in parenting his children, the trial court could reasonably conclude
that Father simply does not have the ability or skills required to adequately care for
two children with special needs.
As discussed earlier, the trial court heard testimony showing that Father has a
propensity for violence, that he has substance abuse issues involving multiple illegal
drugs, and that he has a history of criminal behavior, and that these issues all have
interfered with his ability to act as a full-time parent for either Anne or Tim. There
is also testimony in the record showing that Father cannot currently provide the
children with a stable place to live, and that Father does not have a history of having
a stable job. Given the testimony, we conclude the evidence before the trial court is
16 legally and factually sufficient to support the trial court’s best-interest finding.35 We
overrule Father’s third issue.
Conclusion
The trial court’s judgment is affirmed.
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on January 28, 2019 Opinion Delivered March 7, 2019
Before Kreger, Horton and Johnson, JJ.
35 See In re J.F.C. 96 S.W.3d at 266 (explaining that the appellate court’s analysis should determine whether the factfinder, under a clear and convincing standard of proof, could have formed a firm belief or conviction about the Department’s claims). 17