In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00118-CV ___________________________
IN THE INTEREST OF Z.J. AND D.J., CHILDREN
On Appeal from the 367th District Court Denton County, Texas Trial Court No. 17-8176-367
Before Sudderth, C.J.; Bassel and Womack, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. Introduction
This is an ultra-accelerated appeal1 in which Appellant B.H. (Father) appeals
the termination of his parental rights to his daughter Jane2 and in which Appellant
K.J. (Mother) appeals the termination of her parental rights to her daughter Jane and
her son John following a two-day jury trial.3 In two points, Father argues that it was
unconscionable for the trial court to terminate his parental rights to Jane based on his
failure to comply with his service plan because of his indigence, and he argues that the
evidence is insufficient to support the trial court’s endangering-environment and
endangering-conduct findings. Mother’s court-appointed attorney filed a motion to
withdraw as counsel and an Anders brief in support of that motion. Because an
unchallenged predicate ground supports the termination of Father’s parental rights
1 See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed). Unfortunately, it was not reasonably possible to dispose of this appeal within 180 days after the notice of appeal was filed due to unresolved questions about the children’s status under the Indian Child Welfare Act. After abating this appeal three times to resolve those questions, the trial court signed an order on November 1, 2019, finding that the children are not Indian children. With those questions resolved, we may dispose of this appeal. 2 See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights). All children are referred to using aliases. 3 John’s father’s parental rights were also terminated, but he did not file a notice of appeal. He is referenced in this opinion when necessary to show the role that he played in the children’s removal.
2 and because Mother’s appeal is frivolous, we affirm the trial court’s judgment
terminating Father’s parental rights to Jane and terminating Mother’s parental rights
to Jane and John.
II. Factual Background 4
A. Overview
At the time of the termination trial in March 2019, Mother had been in a
relationship with John’s father for nine years. Mother’s relationship with Father
coincided with her relationship with John’s father, when they all lived in Michigan.
Mother, Father, and John’s father have all struggled with drug use, and Mother and
the children lived with John’s father in a drug house in Michigan.
In December 2016, Mother moved Jane and John to Texas in search of a better
environment for her kids, but she moved into another drug house. During a drug raid
on the home in September 2017, police discovered unsanitary conditions in the home
and found a gun sitting on a dresser and cocaine residue on a scale that was accessible
to the children. The Texas Department of Family and Protective Services (the
Department) was called to the scene and took possession of the children.
4 Because Father challenges the sufficiency of the evidence to support several of the predicate grounds and because we are required to address and detail our analysis of the endangering-environment or endangering-conduct findings, we set forth a detailed factual background. See generally In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (holding that due-process and due-course-of-law requirements mandate that an appellate court must address and detail its analysis for an appeal of termination of parental rights when a parent has presented an issue under Family Code Section 161.001(b)(1)(D) or (E) even when there is sufficient evidence to support another enumerated ground for termination).
3 Mother’s parental rights to Jane and John were terminated based on the
endangering environment and endangering conduct that Mother had exposed them to
in addition to failing to complete her court-ordered services. Father, who lived in
Michigan throughout the case and who tested positive for various illegal drugs, had
his parental rights to Jane terminated based on exposing her to an endangering
environment and endangering conduct, failing to complete his court-ordered services,
and constructively abandoning her. Additionally, Mother’s and Father’s parental
rights were terminated based on the jury’s best-interest findings.
B. Life in Michigan
Mother, who grew up in Michigan, started smoking marijuana at sixteen and
continued smoking marijuana as she got older. Mother testified that in Michigan,
people consider marijuana use to be normal because it is legal to use it for both
medicinal and recreational purposes. Even though Mother knew that marijuana was a
drug, she “didn’t think that it was a big problem” for her. Mother believed that
marijuana helped reduce her rage issues. Mother said that marijuana kept her calm
and kept her out of trouble and that without it, her anger was “just unmanageable.”
After giving birth to Jane in June 2014, Mother did not work outside the home.
Mother said that Father never came to see Jane and that he did not do “anything
pertaining to taking care of her.” Mother testified that when she applied for food
stamps in Michigan, Father was not providing any financial support for Jane.
4 Mother testified that when she was pregnant with John, she smoked marijuana
until she was six-and-a-half months pregnant but then stopped because she wanted
John to test negative for drugs when he was born in June 2015.5 Mother mentioned
that she was involved with CPS in Michigan because John tested positive for
marijuana, but she did not specify when this occurred.
Mother testified that she had knowledge of John’s father’s criminal activity in
Michigan: she knew that he smoked marijuana, hung around the wrong crowd, and
dealt drugs. Mother admitted that she and her children lived with John’s father in
Michigan while he was dealing drugs. Mother testified that she decided to move to
Texas on December 24, 2016, because “the living environment in Michigan wasn’t fit
for [her] to raise [her] kids there.”
C. Life after Moving to Texas
When Mother came to Texas, she moved in with John’s paternal aunt and her
fiancé. When Mother moved in, she knew that they were selling drugs out of the
home. Mother later testified that when she had moved in, she did not know that
drugs were being sold out of the house, but “months afterwards[,]. . . that is when
[she] caught on that it was drugs being sold out [of] the house.” Mother testified that
she did not want to raise her children in a drug house but that she did not have
anywhere else to go and was doing the best that she could at that time.
5 Mother testified that even though it was legal in Michigan to smoke marijuana, it was not okay to do so around children and that CPS could “still get involved in your life if your kids test dirty during pregnancy.”
5 Mother testified that John’s father moved to Texas in February or March 2017
and that he did not immediately start selling drugs. But Mother knew that John’s
father was using drugs. Mother also knew that John’s father was a felon and that he
had a gun, but she testified that she did not know that the gun was located in the
room where they slept. Mother testified that her children did not have access to the
gun. Mother said that she had talked to John’s father about getting rid of the gun and
about abstaining from drugs but that he did not take her advice.
Mother was also using drugs. Mother said that she spent $50 per day on
marijuana, which equated to twenty or twenty-five “blunts.”6 She testified that it took
her at least seven blunts to get high and that once she started sobering up, she then
decided whether she wanted to get high again.
D. Mother’s Parenting Skills in the Texas Drug House
Mother testified that she worked at a group home doing laundry and
housekeeping for five or six months and that her children were watched by the people
she was living with who were dealing cocaine and marijuana. When asked what steps
she had taken to protect her children from the drugs, Mother admitted that she did
not do anything to keep her children away from the cocaine and the marijuana that
was in the house where they were living.
Mother testified that John’s behavior and anger was worse than other two-year-
olds and was different than anything she had ever seen. Mother said that when John
6 Mother explained that a blunt is like a cigar and is larger than a joint.
6 did not get his way, he tended to throw things, hit people (without regard to their size
or their age), “mess up” televisions, throw dirt in kids’ hair, take stuff from kids, or
bite them. When asked if she had ever tried to teach John not to hit people or how to
calm down, Mother said that she had talked to him about not hitting people but that a
two-year-old boy “ain’t just going to take that and run with that.” Mother said that
she did not ever seek any professional help for John. Mother said that she had tried
to handle John by giving him juice or popsicles, by letting him watch Spiderman, or
by taking him to the park until he fell asleep.
Mother admitted that John was a handful for her and that she had left a
thirteen- or fourteen-year-old girl in charge of him when he played outside. Mother
did not think that the teenager could more effectively handle John than she could.
E. The Drug Raid
Detective Adam Deweber with the Denton Police Department testified that he
was familiar with Mother and John’s father based on numerous tips in the summer of
2017 regarding drug activity at their residence. Based on the tips, Detective Deweber
used a confidential informant who made multiple purchases of crack cocaine at
Mother and John’s father’s residence. The last controlled purchase was made in
September 2017, and the person who sold the drugs to the confidential informant was
“Little Man,” who is John’s father. Detective Deweber then obtained a search
warrant for the residence, and Denton Police Department’s tactical team executed the
search warrant around 9 a.m. on September 22, 2017.
7 After the tactical team secured the home, Detective Deweber was present for
the search of the home. Detective Deweber testified that John’s father had
voluntarily told him that he had a nine-millimeter handgun in his possession and that
it was located on the dresser next to his bed. John’s father was arrested on a warrant
for manufacture and delivery of under one gram of cocaine, and Mother was arrested
for endangering a child. Detective Deweber explained that the endangerment charge
was due to Mother’s “keeping her kids in a known drug house where drugs were
being used and sold that ultimately ended in a tact[ical] raid[,] which put those kids in
danger.” Detective Deweber testified that the children were in danger because it is
“not a safe environment to have kids in a house where drugs are being used and
sold.”
F. The Department Takes Possession of the Children
Shani Darthard, an investigator with the Department, testified that she was
assigned to respond to the drug raid in which Mother and John’s father were arrested.
When Darthard arrived on the scene, six adults were handcuffed in the backyard, and
four or five children were running around. The police told Darthard that they had
conducted controlled purchases of drugs from the home, that the children were
present during the purchases, that cocaine was accessible to the children, and that
there were guns in the home.
Darthard spoke with Mother, who was crying and upset. Darthard’s
understanding was that Mother lived in the drug house because she did not have
8 anywhere else to stay after she and her children had moved to Texas. Mother told
Darthard that she knew drugs were being sold out of the home but that she did not
want to report it because she did not want to be a snitch. Mother denied knowing
that there were guns in the home.
Mother told Darthard that she was using marijuana “[a]ll the time. Every day.”
Mother indicated to Darthard that she had an anger-management problem and said
that was one of the reasons that she used marijuana daily. Mother explained that she
used marijuana because it helped her with her attitude and with staying calm when her
children screamed, which they did “a lot of.” Mother agreed to take a drug test and
stated that she would test positive for marijuana. Mother said that she did not use any
other drugs. Mother signed an acknowledgement of substance abuse and admitted
that she had abused substances in the children’s presence.
Darthard spoke with John’s father who said that he had moved to Texas in
March or April 2017. He took responsibility for the situation and admitted to selling
and using drugs. John’s father said that his and Mother’s most recent marijuana use
was the day before they were arrested.
When Darthard entered the home, she encountered piles of trash, piles of
clothes, holes in the wall, dirty dishes in the kitchen, flies everywhere, and “food and
stuff everywhere.” The police pointed out to Darthard a scale and cocaine that were
on the table. Darthard also noted that the children did not have beds to sleep in.
Darthard testified that the children’s living conditions were deplorable, posing a safety
9 hazard, and agreed that the home was not a place to raise children. Darthard believed
that the children were endangered by living in a home where drugs were being sold.
Darthard testified that a coworker took possession of the children on
September 22, 2017. The children were taken for drug testing, and based on the
results of the drug tests, the Department had further concerns.7 The children were
placed in foster care.
G. Mother’s Release from Jail
After her arrest on the day of the drug raid for two counts of child
endangerment—one count based on Jane and one count based on John—Mother
spent two or three days in jail. Her mother came from Michigan to bail her out.
Mother also received financial help for meeting her $25,000 bond from the people she
was living with.
H. The Department Learns that John’s father Is Not the Father of Jane
After the initial adversary hearing, Mother informed Darthard that Father was
the father of Jane. Mother testified that Jane was two-and-a-half years old when they
moved to Texas and that Father had seen her approximately twenty times and had
kept her overnight a couple of times.
7 Mother testified that John had tested positive for cocaine and marijuana. The record also revealed that Jane had tested positive for cocaine. Mother said that John was exposed to the fumes “[f]rom cooking up the dope” and that it was in his hair follicle. She said, “It’s not like he peed it out[,] or [Jane] peed it out. It is a hair follicle.” Mother agreed that she knew what was happening and that she had allowed her children to stay in the drug house.
10 When Darthard contacted Father in Michigan and told him what was going on
with Jane, Father said that he had limited contact with Mother and Jane. Father told
Darthard that Mother had left Michigan with Jane and that he did not know where
she was.8 Father asked how Jane was doing and said that he did not want her in
foster care. Darthard described Father as “a concerned parent trying to figure out
why his daughter was in foster care.”
Father told Darthard that he had been smoking marijuana since he was a
teenager and that he smoked marijuana every other day. Darthard testified that
Father did not have a medical-marijuana card at the time of the temporary-orders
hearing. Darthard testified that even with a medical-marijuana card, marijuana use is
never appropriate in the presence of children. Darthard told Father that he would
need to take a drug test, and he asked her what he would need to do so that he would
test negative. After Father asked that question, the Department requested that Father
undergo a drug test on October 13, 2017, but Father did not take the test until five
8 Mother testified that Father knew she was in Texas but did not know her exact location. Moreover, Father told Darthard that he had initiated proceedings in Michigan to bring Jane back to Michigan because Mother had taken her to Texas in violation of a court order. There was evidence that the case was dismissed by agreement of the parties, but Mother said that she did not agree to dismiss the suit because she did not even know that it had been filed.
11 days later. Father’s urinalysis was negative, but his hair-follicle test was positive for
amphetamine, marijuana, 9 cocaine, and methamphetamine.
Father came to Texas for the next hearing. At trial, Darthard recapped Father’s
testimony from the October 20, 2017 adversary hearing, stating that he had testified
that he had been arrested in 2010 for “possession of dangerous drugs” and in 2013
for possession of cocaine but that he had not been arrested “for years.” 10
I. Parents Ordered to Work Services
Darthard testified that the trial court ordered all three parents (Mother, Father,
and John’s father) to work services. The services required Mother and Father to
refrain from all criminal activity, any use of alcohol or illegal substances, and any
misuse of prescription drugs; to attend and to participate in Narcotics Anonymous
(NA)/Alcoholics Anonymous (AA) meetings; to complete a psychosocial assessment;
to attend individual counseling sessions; to pay child support and medical support; to
participate in visits; to complete parenting classes; to establish and maintain suitable
9 Christina Ross, the conservatorship worker who took over the case in February 2018, explained that Father had tested positive in October 2017 and that he was not issued a medical-marijuana card in Michigan until March 2018. Moreover, Father could not tell Ross what condition qualified him for a medical-marijuana card. 10 The record from the adversary hearing reflects that Father did not recall being arrested for those charges; explained that he was arrested for having one Vicodin in his possession; and claimed that the 2009 arrest “was brought back up and handled in ’13, but it’s the same case [involving the Vicodin pill].” Father told Darthard that he had been arrested three times on drug charges, including for possession of a controlled substance. The record also includes arrest records from Michigan, showing that Father had been arrested for aggravated felony assault in February 2017, intimidation in January 2017, and burglary in June 2014.
12 and legal employment for at least six months and continuing throughout the
pendency of the case; to establish and maintain safe, stable, and appropriate housing;
to participate in a drug and alcohol assessment and follow the recommendations; to
complete a psychological evaluation; and to submit to random drug testing. Ross
acknowledged that Father was a non-offending parent but testified that he was
ordered to work services based on his drug-test results.
Darthard told Father that the Department would not pay for any of his court-
ordered services in Michigan but that the Department would find out what services
Michigan offered that would be compatible with his required services. 11 Darthard said
that the Department would pay for Father’s services if he relocated to Texas. Father
said that he had recently started a new job in Michigan and that he was not interested
in staying with his aunt who lived in Fort Worth in order for him to work his services
in Texas because his life, which included other children, was in Michigan.
1. Mother’s Compliance
Although Mother completed the intensive outpatient program (IOP) in June
2018, she admitted that she was still smoking two or three blunts per day three
months later in September 2018. Mother agreed that every time that she bought
11 Brenda Zambonino, a supervisor with the Department, testified that the Department does not have the resources to pay for services for a parent who lives out of state. Zambonino explained that when an indigent parent lives out of state, the Department works very hard to locate services in his area that are free or that have sliding-scale fees.
13 marijuana while the Department’s case was pending, she was engaging in criminal
activity.
Mother said that she stopped smoking marijuana in September 2018 because
otherwise she would lose Jane and John. Mother said that she had been clean for
four-and-a-half months at the time of the termination trial. Mother testified that she
did not have a problem with marijuana and never had.
Mother testified that she was “staying with an uncle” at the time of the
termination trial. Mother testified that at her uncle’s one-bedroom apartment, he
slept in the bedroom, and she slept in the living room.
Mother testified that she worked twenty-five hours per week at a sporting
goods store at the time of the termination trial and that the rest of the day she sat at
home waiting to go to work. Mother said that she paid her uncle $100 per month for
rent and $0 for utilities and that she spent $100 per month on food. Mother testified
that she did not have much money left over at the end of each month. Mother then
said that before trial, she paid $40 to get her nails done and $190 to get her hair done.
Mother admitted that she had not made any child-support or medical-support
payments for the children but said that she had given things to Jane and John at the
weekly visits.
Darthard testified that she had monitored two of the parent–child visits and
had noted that the visits went fine, that Mother had interacted with the kids, and that
14 there were no concerns. Both Darthard and Ross said that Mother appeared to be
bonded to her children and that the children appeared to be bonded to her.
Ross testified that the Department had talked to Mother and John’s father
about appropriate food and drink choices but that they had not changed what they
brought for the children. Ross explained that there was a concern about sugary foods
and drinks causing tooth decay because the children had dental problems when they
came into the Department’s care. 12 Despite the Department’s requests not to give
John sugary foods, Mother and John’s father bought cookies and Air Heads from the
vending machines for John. Ross further explained that “being hopped up on sugar”
caused the children to have difficulties returning to daycare after the visits. Ross
testified that she had seen no change in Mother’s parenting abilities at the visits after
she had completed parenting classes.
2. Father’s Compliance
Ross testified that Father had complied with some of the services on his service
plan. Father completed one of his services through First Step, and the records from
First Step reflect that Father listed his first drug of choice as “weed” and his second
drug of choice as cocaine.
Ross testified that she had called Father numerous times but had talked to him
only once—in August 2018—and had given him her contact information. During the
one time that Ross spoke with Father, they discussed doing his psychological
12 John’s front teeth required caps due to bottle rot.
15 evaluation with Dr. Lara Hastings, and Ross provided Father with her contact
information. Ross said that Father was very hard to understand because his speech
was slurred. Ross offered Father a visit with Jane, but he said that he would have to
get back to Ross. Father did not ask about Jane during that phone conversation, and
Father never called Ross to check on Jane. The record shows that Father visited with
Jane only two times while the case was pending and that those two visits had occurred
in October 2017 when he was in Texas for the adversary hearing.
The record revealed that Father did not complete several other services even
though there is no cost to attend AA or NA; there is no cost for a psychosocial, a
psychological evaluation, or a drug assessment if done in Texas at a provider listed in
the temporary orders; and those three services could be completed in one or two days
with the only cost being travel to and from Texas. Father also had not completed a
free parenting class that was available in his area in Michigan.
Father did not ask for help in finding free or low-cost counseling services.
Moreover, Father never told Ross that he could not afford the services that he was
being asked to complete.
At the October 2017 adversary hearing, Father said that he worked in the
family business and made approximately $100 per week and that he cut hair and made
$70 or $80 per week. But Father did not give Ross information about his ability to
provide Jane with a safe home and did not send her pay stubs showing that he could
16 provide for her. Ross testified that based on Father’s social-media postings, he
appeared to be doing okay financially.13
J. Father’s Relationship with Jane
Ross testified that Jane does not know Father as her father but instead believes
that John’s father is her father. Ross further testified that Father had not
demonstrated any of his parental abilities and had not shown that he is able to meet
Jane’s physical and emotional needs.
K. Mother’s Community Supervision
Mother ultimately took a plea offer for the two counts of child endangerment
that she was charged with in connection with the drug raid and received three years’
deferred-adjudication community supervision. As part of her deferred-adjudication
community supervision, Mother is required to undergo random drug testing every
month. Mother had a positive drug test in November 2018. Mother understood that
if she did not comply with her community-supervision conditions, she could go to jail
and further jeopardize her children.
L. Mother’s Third Child
Mother gave birth to a son in December 2018. The hospital notes state that
Mother admitted using THC during the two weeks leading up to the child’s birth.
13 The ad litem admitted a picture of a February 5 post from Father’s Facebook page that states, “Still spending old money,” and depicts a pile of money. Mother testified that when she dated Father, he had paid for things in cash and that she believed he had received the cash from selling marijuana.
17 Mother denied that she had made this admission. When the child was discharged
from the hospital, CPS took possession of him.14
M. The Children’s Status
Ross testified that Jane had undergone a psychological evaluation and that
based on those results, she was receiving play therapy on a weekly basis. John had
undergone two psychological evaluations, and based on the results, he was receiving
play therapy once a week and behavioral therapy twice a week. Ross testified that
behavioral therapy was working with John to help him control his emotions, to
redirect his attention, and to understand “no.”
N. Mother’s Plans
Mother testified that she had changed and that her marijuana addiction was
over. Mother testified that in order to stay clean, she was not going to smoke
marijuana and was going to keep working and educating herself to do everything that
she needed to do “to stay strong for [her] babies.” Mother testified that if her
parental rights were not terminated, her plan was to move to a place where her
monthly rent would be $849 with all bills paid. Mother understood that her current
job would not cover that amount, and so she had applied for another job that paid
$12 per hour. Mother explained that she was going to save up her paychecks to
afford the rent. Mother also had a tax refund that she was going to put toward the
rent. But Mother said that she did not know how much daycare would cost and had
14 Mother’s third child is the subject of a separate case.
18 not looked into one. Mother testified that she loved Jane and John and that she
wished she had taken a better route than the one that had led to their placement in the
Department’s care.
O. The Department’s Concerns, Recommendations, and Plans
Ross opined that Mother’s plan for the children was not viable because (1) she
was not stable and would likely have difficulty renting her own place due to prior
evictions, (2) she had not shown how she would be able to provide for the children or
for daycare, and (3) she had not shown how she would remain sober.
Ross’s concerns about returning the children to Mother included her failure to
demonstrate an ability to provide for their basic needs and suitable housing, to
maintain a significant period of abstinence, to acknowledge her drug problem, and to
demonstrate positive lifestyle changes since the children’s removal. Ross testified that
Mother had not paid child support, had not maintained safe and suitable housing, and
had not successfully completed drug treatment because she had continued using drugs
after she had finished the IOP. Ross said that Mother does not have a support system
other than John’s father, who was heading to jail in the immediate future on criminal
charges. Ross opined that it was in Jane’s and John’s best interests for Mother’s
parental rights to be terminated because Mother was not able to meet their physical or
basic needs, had put them in physical danger, had continued to use the controlled
substance that had initially put the children in danger, and had not demonstrated that
she possesses the necessary parenting abilities.
19 Ross testified that Father’s criminal involvement in Michigan endangered Jane
by exposing her to drugs and a lifestyle that is not appropriate for a child. Ross said
that the Department believed that termination of Father’s parental rights to Jane was
in her best interest because he had ultimately abandoned her and had made no
attempt to contact Ross, visit Jane, or work services.
Zambonino testified that it is in a child’s best interest to have permanency and
that the Department’s plan for the children is adoption. Zambonino testified that a
local home study was pending at the time of the termination trial and that if it were
approved, Jane and John could be placed there if their parents’ rights were terminated.
P. Outcome
After hearing the evidence above, the jury found by clear and convincing
evidence that Mother had knowingly placed or had knowingly allowed the children to
remain in conditions or surroundings that had endangered their physical or emotional
well-being, had engaged in conduct or had knowingly placed the children with persons
who had engaged in conduct that had endangered the physical and emotional well-
being of the children, and had failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the return of the
children who had been in the temporary managing conservatorship of the
Department for not less than nine months. The jury also found that termination of
the parent–child relationship between Mother and the children was in the children’s
best interest.
20 The jury found that Father had knowingly placed or had knowingly allowed
Jane to remain in conditions or surroundings that had endangered her physical or
emotional well-being, had engaged in conduct or had knowingly placed Jane with
persons who had engaged in conduct that had endangered her physical and emotional
well-being, had failed to comply with the provisions of a court order that specifically
established the actions necessary for Father to obtain the return of Jane who had been
in the temporary managing conservatorship of the Department for not less than nine
months, and had constructively abandoned Jane. The jury additionally found that
termination of the parent–child relationship between Father and Jane was in Jane’s
The trial court signed an order of termination setting forth the jury’s findings.
Father and Mother each perfected an appeal from the trial court’s judgment
terminating their parental rights.
III. Burden of Proof and Standard of Review
For a trial court to terminate a parent–child relationship, the Department must
prove two elements by clear and convincing evidence: (1) that the parent’s actions
satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that
termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re
E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
Evidence is clear and convincing if it “will produce in the mind of the trier of fact a
21 firm belief or conviction as to the truth of the allegations sought to be established.”
Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that
the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
factfinder could have done so. Id. We disregard all evidence that a reasonable
factfinder could have disbelieved, and we consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to the finding if a
reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. See id. The factfinder is the sole judge of the witnesses’
credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant the verdict with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that the parent
violated a predicate ground listed in section 161.001(b)(1) and that the termination of
the parent–child relationship would be in the children’s best interest. Tex. Fam. Code
22 Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder
reasonably could form such a firm conviction or belief, then the evidence is factually
sufficient. C.H., 89 S.W.3d at 18–19.
IV. Father’s Appeal
A. Waiver Due to Unchallenged Ground
The termination judgment reflects that Father’s parental rights were terminated
based on four predicate grounds: endangering environment (Subsection (D));
endangering conduct (Subsection (E)); constructive abandonment (Subsection (N));
and failure to comply with a court-ordered service plan (Subsection (O)). See Tex.
Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O). But Father’s two arguments on
appeal challenge only the endangering-environment ground, the endangering-conduct
ground, and the failure-to-comply-with-a-service-plan ground. By failing to challenge
the trial court’s constructive-abandonment finding under Subsection (N), Father has
waived any complaint about the sufficiency of the evidence to support that finding.
See id. § 161.001(b) (requiring only one predicate ground to support termination); In re
Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019) (per curiam) (stating that “only one ground
is required to terminate parental rights”); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(interpreting Section 161.001(b) as requiring only one predicate ground); see also Toliver
v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 102–03 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (holding that failure to challenge all of the trial court’s
predicate-ground findings resulted in waiver).
23 B. Sufficiency of Unchallenged Constructive-Abandonment Ground
Moreover, the record before us contains sufficient evidence to support the trial
court’s unchallenged Subsection (N) finding. 15 The Department was appointed as
Jane’s temporary managing conservator in October 2017 and served in that capacity
through the time of the termination trial in March 2019, thus satisfying the six-month
requirement of Subsection (N). With respect to the Department’s efforts to return
Jane to Father, there was evidence of a court-ordered service plan and evidence that
Father did not comply with the service plan. See In re N.R.T., 338 S.W.3d 667, 674
(Tex. App.—Amarillo 2011, no pet.) (citing In re M.R.J.M., 280 S.W.3d 494, 505 (Tex.
App.—Fort Worth 2009, no pet.) (op. on reh’g), and stating that implementation of a
family service plan by the Department is ordinarily considered a reasonable effort to
15 The Texas Family Code provides that the trial court may terminate the parent–child relationship if the trial court finds by clear and convincing evidence that the parent has
(N) 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, and:
(i) the [D]epartment has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment[.]
Tex. Fam. Code Ann. § 161.001(b)(1)(N).
24 return a child to her parent). The record demonstrates that Father had not visited
Jane since October 2017 and had not maintained any contact, much less significant
contact, with Jane during the case. Moreover, Father’s positive hair-strand drug test
reflects an inability to provide Jane with a safe environment. Whether viewed through
the lens of legal or factual sufficiency, the record contains sufficient evidence from
which the factfinder could reasonably have formed a firm conviction or belief that
Father had neither regularly visited nor maintained significant contact with Jane while
she was in the Department’s care and that Father had not demonstrated an ability to
provide a safe environment for Jane. See In re P.R., 994 S.W.2d 411, 416 (Tex.
App.—Fort Worth 1999, pet. dism’d w.o.j.) (holding evidence sufficient to support
Subsection (N) finding because mother sporadically visited child, used drugs, and
failed to comply with service plan), disapproved on other grounds by In re J.F.C., 96 S.W.3d
256, 267 n.39 (Tex. 2002).
C. Sufficiency of Endangering-Conduct Finding
Although only one ground under Section 161.001(b)(1) is necessary to support
termination, 16 in light of the Texas Supreme Court’s recent opinion in N.G., we also
16 See Tex. Fam. Code Ann. § 161.001(b)(1); Z.M.M., 577 S.W.3d at 542; A.V., 113 S.W.3d at 362; see also In re G.H., No. 02-18-00080-CV, 2018 WL 3968788, at *10 (Tex. App.—Fort Worth Aug. 16, 2018, no pet.) (mem. op.) (overruling issues challenging other (b)(1) grounds for termination because the record contained sufficient evidence to support an unchallenged (b)(1) ground).
25 review the sufficiency of the evidence to support the trial court’s Subsection (E)
finding. See 577 S.W.3d at 237.
Subsection (E) provides that parental rights may be terminated if the parent has
“engaged in conduct or knowingly placed the child with persons who engaged in
conduct [that] endangers the physical or emotional well-being of the child.” Tex.
Fam. Code Ann. § 161.001(b)(1)(E). To “endanger” means to expose a child to loss
or injury or to jeopardize a child’s emotional or physical health. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see In re M.C., 917 S.W.2d 268, 269
(Tex. 1996) (per curiam). It is not necessary to establish that a parent intended to
endanger a child to support termination under Subsection (E). See M.C., 917 S.W.2d
at 270. Nor is it necessary to establish that the parent’s conduct was directed at the
child or caused actual harm; rather, it is sufficient if the parent’s conduct endangers
the child’s well-being. See Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d
608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The endangering
conduct does not have to occur in the child’s presence. Id. at 617. The conduct may
occur before the child’s birth and either before or after the child’s removal by the
Department. Id. A parent’s past endangering conduct may create an inference that
the past conduct may recur and further jeopardize the child’s present or future
physical or emotional well-being. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—
Fort Worth 2001, no pet.). “As a general rule, conduct that subjects a child to a life of
uncertainty and instability endangers the physical and emotional well-being of a
26 child.” In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
A parent’s use of illegal drugs, and its effect on his or her ability to parent, may qualify
as endangering conduct. See J.O.A., 283 S.W.3d at 345.
Moreover, a parent’s criminal conduct, convictions, or imprisonment is
relevant to the question of whether he engaged in an endangering course of conduct.
In re S.R., 452 S.W.3d 351, 360–61 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied); A.S. v. Tex. Dep’t of Family & Protective Servs., 394 S.W.3d 703, 712–13 (Tex.
App.—El Paso 2012, no pet.). Imprisonment alone is not an endangering course of
conduct but is a fact properly considered on the endangerment issue. Boyd, 727
S.W.2d at 533–34. Routinely subjecting a child to the probability that he will be left
alone because his parent is in jail endangers the child’s physical and emotional well-
being. In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no pet.).
The evidence showed that the results of Father’s October 2017 hair-strand
drug test were positive for amphetamine, cocaine, marijuana, and methamphetamine.
Based on Father’s drug-test results, the Department concluded that Jane could not be
placed in Father’s care. Additionally, Father had been arrested three times on drug
charges—including for possession of a controlled substance—and for aggravated
felony assault in February 2017, intimidation in January 2017, and burglary in June
2014. The conservatorship worker testified that Father’s criminal involvement in
Michigan endangered Jane by exposing her to drugs and a lifestyle that is not
appropriate for a child. Although Father claims to be the “non-offending parent,”
27 during the time that Jane was in the Department’s custody, he had taken no steps to
contact her after the two visits in October 2017, and he had never provided any
financial support. And even though Father was given a service plan, he did not
complete it. See In re U.H.R., No. 07-18-00318-CV, 2019 WL 81874, at *5 (Tex.
App.—Amarillo Jan. 2, 2019, no pet.) (mem. op.) (stating that trial court could have
considered parent’s failure to complete significant requirements of her service plan as
part of the endangering-conduct analysis under Subsection (E)). A reasonable
factfinder could infer from Father’s past drug use and his failure to work his service
plan that his drug use may recur and may result in additional criminal conduct,
thereby inhibiting his ability to parent and further jeopardizing Jane’s future physical
or emotional well-being. See D.M., 58 S.W.3d at 812. Whether viewed through the
lens of legal or factual sufficiency, the record contains sufficient evidence—including
Father’s drug use, his criminal history, his lack of contact with Jane, and his failure to
complete his service plan to remedy his drug addiction—from which the factfinder
could reasonably have formed a firm conviction or belief that Father’s conduct
endangered Jane. See In re L.M., 572 S.W.3d 823, 835–36 (Tex. App.—Houston [14th
Dist.] 2019, no pet.) (holding evidence sufficient to support Subsection (E) finding
because the record reflected, among other things, father’s wholesale absence from
daughter’s life, multiple episodes of incarceration, and the potential for future
incarceration due to drug-related activity); cf. In re C.M.-L.G., No. 14-16-00921-CV,
2017 WL 1719133, at *8–10, *13 (Tex. App.––Houston [14th Dist.] May 2, 2017, pet.
28 denied) (mem. op.) (addressing (E) finding for collateral-consequences purposes,
holding evidence sufficient under that ground, and affirming entire judgment).
Accordingly, we overrule Father’s second point.17
V. Mother’s Appeal
Mother’s court-appointed appellate attorney filed a motion to withdraw as
counsel and a brief in support of that motion, averring that after diligently reviewing
the record, she believes that the appeal is frivolous. See Anders v. California, 386 U.S.
738, 744–45, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77
(Tex. App.—Fort Worth 2003, no pet.) (reasoning that Anders procedures apply in
noncriminal appeals when appointment of counsel is mandated by statute). The brief
meets the requirements of Anders by presenting a professional evaluation of the
record and demonstrating why there are no arguable grounds to be advanced on
appeal. Although given the opportunity, Mother did not file a response. The
Department filed a letter stating that it would not be submitting a response to the
Anders brief.
As the reviewing appellate court, we must independently examine the record to
decide whether an attorney is correct in determining that the appeal is frivolous. See
17 Having determined that the evidence is sufficient to support the Subsection (E) and (N) findings, we need not address the remainder of Father’s second point challenging the Subsection (D) finding or his first point challenging the Subsection (O) finding. See Tex. R. App. P. 47.1; see also Tex. Fam. Code Ann. § 161.001(b)(1) (requiring only one predicate ground to support termination); Z.M.M., 577 S.W.3d at 542;. A.V., 113 S.W.3d at 362. Father does not challenge the best-interest finding; therefore, we do not address it.
29 Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); In re K.R.C., 346 S.W.3d
618, 619 (Tex. App.—El Paso 2009, no pet.).
Having carefully reviewed the record and the Anders brief, we agree that
Mother’s appeal is frivolous. We find nothing in the record that might arguably
support Mother’s appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.
2005). But we deny the motion to withdraw because it does not show “good cause”
separate and apart from its accurate determination that there are no arguable grounds
for appeal. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (order); In re C.J., 501 S.W.3d
254, 255 (Tex. App.—Fort Worth, 2016, pets. denied). 18
VI. Conclusion
Having overruled the dispositive portion of Father’s second point, having held
that nothing in the record might arguably support Mother’s appeal, and having denied
Mother’s court-appointed attorney’s motion to withdraw, we affirm the trial court’s
judgment terminating Father’s parental rights to Jane and Mother’s parental rights to
Jane and John.
/s/ Dabney Bassel
Dabney Bassel Justice
Delivered: November 21, 2019
18 “[A]ppointed counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief.” P.M., 520 S.W.3d at 27–28.