in the Interest of M.C, N.L., and D.L., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-08-125-CV

IN THE INTEREST OF M.C., N.L., AND D.L.,
CHILDREN

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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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I. Introduction

In four issues, Appellant E.C. contests the sufficiency of the evidence to

support the termination of her parental rights to M.C., N.L., and D.L. We

affirm.

II. Factual and Procedural History

At the time of the termination trial in March 2008, M.C. was seven years

old, N.L. was five years old, and D.L. was two years old. M.C. and N.L. had

1
… See Tex. R. App. P. 47.4.
previously been removed from E.C. in 2004, after a referral to Child Protective

Services (CPS) by a neighbor resulted in E.C.’s arrest for possession of a

controlled substance. E.C. completed her service plan while pregnant with

D.L., and in June 2006, CPS returned her children to her.

E.C. testified that she was currently incarcerated because she had

violated the terms of the four years’ community supervision she received for the

deferred adjudication of the 2004 possession charge. She also testified that,

with regard to the “crack cocaine” that led to her arrest in 2004, she had not

been using it; N.L. and D.L.’s father, R.L., had given it to her to sell for him.2

She also testified that she knew nothing about selling drugs, that she only did

it twice, and that she did it so that he would not “put his hands on [her],” i.e.,

physically abuse her. She testified that when she sold crack cocaine, she

would leave M.C. with her mother and turn the sales profits over to R.L.; that

R.L. was mentally, physically, and sexually abusive to her throughout 2004;

and that he would beat her while the children were asleep.3 She added that

2
… In the same proceeding, the trial court also terminated the parental
rights of R.L., the adjudicated father of N.L. and D.L., and of F.W., M.C.’s
alleged biological father. R.L. and F.W. did not appeal.
3
… R.L. testified that he physically assaulted E.C. but that he “never beat
her. Just smacked her up.” He testified that the children were in the house,
asleep in their room, when he abused their mother. He testified that the
children never saw him assault E.C.

2
sometimes the children were awake and saw the domestic violence between

her and R.L.; she did not know if he had ever harmed the children.

E.C. also testified that she used marijuana around her children, then

immediately contradicted herself, stating, “No, I don’t use drugs around my

kids,” and then explained that she would smoke “weed” outside on her patio

while her children were inside the house. She admitted that she had cared for

her children while under the influence of marijuana and that she had allowed

R.L. and his girlfriend to care for the children when R.L. was under the influence

of drugs.

E.C.’s community supervision was revoked because, in December 2006,

she committed assault with bodily injury against the mother and sister of R.H.,

her alleged common law husband;4 she was also charged with, and she pleaded

guilty to, harassment and criminal trespass. E.C. claimed that R.H.’s mother

attacked E.C. first, in front of the children, and that E.C. hit her back. E.C.

testified that she gave R.H. temporary custody of her children when she knew

she was going back to jail for violating the terms of her community supervision.

She also testified that R.H. had a girlfriend while E.C. was incarcerated and that

4
… E.C. testified that she began a relationship with R.H. in 2001. She
testified that they were common law married because they were beneficiaries
on each other’s health insurance.

3
he was unable to take care of E.C.’s children because “him and his girlfriend

were having confrontations, or whatever.”

In March 2007, the State placed the children into foster care. In the

affidavit the State submitted in support of its request for temporary managing

conservatorship, the CPS caseworker averred that E.C. asked a friend to call

CPS and request removal of the children from R.H. and for CPS to place them

in foster care. E.C. testified that she remained in jail from March to July, that

she had no contact with her children or R.H. during that time, that neither CPS

nor R.H. notified her that her children were placed into foster care or taken

away from R.H. while she was in jail, and that CPS did not mail her a service

plan while she was in jail. She testified that a friend wrote to her in April or

May and told her that her children were in foster care and that CPS “never gave

[her] a service plan due to the fact that [she] knew what a service plan was.”

E.C. testified, “I just knew what I had to do,” but she also testified that she did

not know what a service plan was. She testified that she called CPS the day

that she was released from jail but that the caseworker was out of the office

that day.

E.C. testified that when she was released in July, she attempted to work

on her service plan. E.C. acknowledged working her CPS service plan from

2004 to 2006 to get her children back but stated that with regard to the

4
second time her children were placed into foster care, “I didn’t know that they

actually wanted me to take these classes over again[,] [s]o I was aggravated

with that situation.”

E.C. testified that she tried to complete the service plan. She stated,

“whenever I’m out [of jail], I go see my children”; that she was hampered in her

ability to get her drug tests and other services because she did not have

identification and a caseworker was supposed to go with her; 5 and that she

visited her children around four or five times before she was arrested again in

September 2007 when R.H. accused her of committing criminal trespass.6 E.C.

also testified that while she was out of jail, she had a job and a house that her

grandfather had left to the family, so her “kids got a free bedroom.”

The ongoing CPS caseworker testified that E.C. did not make any

appropriate progress on her service plan while she was out of jail. She testified

that the three children had been in the same foster home for six to seven

months; that the children called their foster mother, “Mom”; that the children

5
… E.C. testified that she needed her birth certificate, her social security
card, and her identification for the services and that she lost all of those items
when she lost her apartment.
6
… E.C. testified that R.H. sought and received a protective order against
her for coming onto his property and stealing his dog and that R.H. was
supposed to get the protective order removed because she did not actually steal
his dog.

5
had stability and were progressing because of that stability; and that every time

they visited any of their biological family, according to the foster mother, the

children regressed behaviorally and emotionally by becoming very aggressive

and by having “accidents in their pants.” According to what the CPS

caseworker had been told by the foster mother, two-year-old D.L. had “the foul-

language vocabulary of an adult man,” which manifested only after visits with

his biological family. She recommended that E.C.’s parental rights be

terminated; she testified that the State’s plan for the children was for them to

be adopted by their current foster parents.

The children’s attorney ad litem testified that he made numerous home

visits with the children and their foster mother, that the foster home was very

stable, and that the children were very well cared for there. He testified that

after visits with E.C., the children were very despondent and suffered a

negative impact on their overall mental health. He agreed that the only words

D.L. knew were profane and that he could reasonably state that D.L. did not

learn those words in the foster home. He testified that the foster mother told

him that she was willing to adopt the children and opined that she would be the

best person to adopt the children. He recommended termination of E.C.’s

parental rights.

6
 The trial court terminated E.C.’s parental rights, finding by clear and

convincing evidence that she knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endangered the children’s

physical or emotional well-being; that she engaged in conduct or knowingly

placed the children with persons who engaged in conduct that endangered the

children’s physical or emotional well-being; that she constructively abandoned

the children; and that termination of E.C.’s parental rights to the children was

in the children’s best interest. See Tex. Fam. Code Ann. §§ 161.001(1)(D),

(E), (N), 161.001(2) (Vernon Supp. 2008). This appeal followed.

III. Discussion

E.C. complains that the evidence is not legally and factually sufficient to

support the trial court’s endangerment and constructive abandonment findings

under section 161.001(1) and that the evidence is not factually sufficient to

support the trial court’s best interest finding under section 161.001(2).

A. Standard of Review

A parent’s rights to “the companionship, care, custody, and

management” of his or her children are constitutional interests “far more

precious than any property right.” Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

7
not absolute. Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional

and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the

State seeks not just to limit parental rights but to end them permanently—to

divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit. Tex.

Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.

1985). We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at

20–21; In re E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no

pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;

termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

8
 Termination of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls

between the preponderance standard of ordinary civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth

2006, pet. denied). It is defined as the “measure or 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.” Tex. Fam. Code Ann. § 101.007

(Vernon 2002).

In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction that the grounds for termination

were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must

review all the evidence in the light most favorable to the finding and judgment.

Id. This means that we must assume that the fact-finder resolved any disputed

facts in favor of its finding if a reasonable fact-finder could have done so. Id.

We must also disregard all evidence that a reasonable fact-finder could have

disbelieved. Id. We must consider, however, undisputed evidence even if it is

9
contrary to the finding. Id. That is, we must consider evidence favorable to

termination if a reasonable fact-finder could and disregard contrary evidence

unless a reasonable fact-finder could not. Id.

We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the fact-finder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the fact-finder’s determinations as long as

they are not unreasonable. Id. at 573.

In reviewing the evidence for factual sufficiency, we must give due

deference to the fact-finder’s findings and not supplant the judgment with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that the parent violated the endangerment or constructive

abandonment provisions of section 161.001(1) and that the termination of the

parent’s parental rights would be in the best interest of the children. C.H., 89

S.W.3d at 28. 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

10
conviction in the truth of its finding, then the evidence is factually insufficient.

H.R.M., 209 S.W.3d at 108.

B. Endangerment

In her first two issues, E.C. complains that the evidence is not legally and

factually sufficient to support the trial court’s findings under subsections (D)

and (E) because she “did not voluntarily, deliberately, and consciously engage

in a course of conduct” that endangered the children and that her conduct did

not create an environment detrimental to the children’s well-being.

The court may order termination of the parent-child relationship if the

court finds by clear and convincing evidence that the parent has engaged in

conduct or knowingly placed the child with persons who engaged in conduct

that endangers the child’s physical or emotional well-being. Tex. Fam. Code

Ann. § 161.001(1)(E). “Endanger” means “more than a threat of metaphysical

injury or the possible ill effects of a less-than-ideal family environment, [but] it

is not necessary that the conduct be directed at the child or that the child

actually suffers injury. Rather, ‘endanger’ means to expose to loss or injury; to

jeopardize.” Boyd, 727 S.W.2d at 533 (citation omitted); In re J.M.M., 80

S.W.3d 232, 241 (Tex. App.—Fort Worth 2002, pet. denied), disapproved on

other grounds, In re J.F.C., 96 S.W.3d 256 (Tex. 2002).

11
 Under subsection (E), the relevant inquiry is whether evidence exists that

the endangerment of the child’s physical or emotional well-being was the direct

result of the parent’s conduct, including acts, omissions, and failures to act,

and it must be based on more than a single act or omission; a voluntary,

deliberate, and conscious course of conduct by the parent is required. J.T.G.,

121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); J.M.M., 80

S.W.3d at 241; see also In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied) (holding that the creation of an “emotional

vacuum” in the child’s life by being absent for more than twelve months due

to incarceration was evidence of endangering the child’s emotional well-being).

The specific danger to the child’s well-being may be inferred from parental

misconduct alone. Boyd, 727 S.W.2d at 533.

To determine whether termination is necessary because of endangerment,

courts may look to parental conduct both before and after a child’s birth. In re

D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). Conduct

that subjects a child to a life of uncertainty and instability endangers the child’s

physical and emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex.

App.—San Antonio 1998, pet. denied) (using illegal drugs and violating parole

provided sufficient evidence of endangerment). However, the relationship of

the parent and child, as well as efforts to improve or enhance parenting skills,

12
are also relevant in determining whether a parent’s conduct results in

“endangerment” under section 161.001(1)(E), even when the parent is

incarcerated. In re D.T., 34 S.W.3d 625, 640 (Tex. App.—Fort Worth 2000,

pet. denied).

Imprisonment is a factor to be considered by the trial court on the issue

of endangerment. Boyd, 727 S.W.2d at 533. But imprisonment alone does not

constitute endangering conduct; the State must show that the incarceration is

a part of a course of conduct that is endangering the child. In re D.M., 58

S.W.3d at 812–13 (noting that mother’s frequent incarcerations affected her

ability to properly care for her children and to comply with her service plans);

see also In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no

pet.) (observing that father’s incarceration affected his ability to ensure that his

child was properly taken care of, prevented him from funding better living

conditions or providing financial support for the child, and indicated a course of

conduct that was endangering to his child); D.T., 34 S.W.3d at 639 (looking

not only to incarceration as a factor in factual sufficiency but also the expected

length of sentence and whether the underlying conduct is of a type, in and of

itself, from which endangerment may be inferred).

E.C. claims that there was “ample” evidence that she had a history of

cooperating with the State and progress on her service plan and that the

13
removal was based only on her incarceration and not on any abuse allegations.

E.C. cites in support of her argument her employment prior to her incarceration

and intent to return to employment postincarceration; her visits with the

children after they were placed in foster care, as well as the fact that she did

not cancel or miss any scheduled visits; and the administrative difficulties that

she encountered in working on the service plan. E.C. states that while there

was evidence of her past involvement with illegal drugs, there was also

evidence that she tried to protect the children from being exposed to drugs in

the home and that she provided for the children’s medical needs in an

appropriate manner.

The record reflects that E.C., if not her children, suffered from domestic

violence at R.L.’s hands; that E.C. used drugs while her children were home;

that E.C. repeatedly violated her community supervision, at least once in a

violent manner; and that E.C. left her children with someone who was

unprepared to care for them when she went to jail.7 And notwithstanding the

evidence referred to above by E.C., her own testimony reflects a pattern of

conduct that endangered her children by subjecting them to significant

7
… E.C. testified that it was her understanding that the children were
going to stay with R.H. while she was incarcerated and that R.H. never
informed her that her children were put into foster care in March 2007.

14
uncertainty and instability. She testified, “I guess,” when asked whether she

was aware that a new violation of her community supervision could result in

revocation when she committed the December 2006 assault, which resulted in

the children’s March 2007 removal. Only a month and a half after being

released from prison for that assault, she committed another violation, resulting

in her incarceration during the termination trial. When testifying about how R.L.

abused her, E.C. asked, “What does this have to do with my children?”

although she later acknowledged that exposing the children to a pattern of

domestic violence could harm the children in the long run. When asked why

she thought the trial court should not terminate her parental rights, E.C. replied,

“Because I’m not really with [R.L.]. I really wasn’t with [R.L.]. The reason me

and my husband [R.H.] keep getting into it [is] because he thinks I’m going to

go back to [R.L.].”

Furthermore, the evidence to which E.C. refers in order to demonstrate

that she tried to protect the children from being exposed to drugs in her home

could have, instead, been construed by the trial court as more evidence that

E.C.’s overall course of conduct endangered the children. E.C. testified that

she discovered that R.L. sold crack cocaine out of her apartment, stating,

“When I came home in 2004 from being arrested, I found that baggie in my

house, and one day I seen him in the restroom cutting up the crack. And I told

15
him, I say, ‘Don’t do that in front of my kids.’” And while she testified that the

drug sales occurred during 2001 and 2004, E.C. did not set a date with regard

to when she smoked marijuana—“the only drug I use, if that’s what you want

to call it”—outside her home while her children slept or played inside. She also

admitted that she cared for the children while under the illegal drug’s influence.

Some of E.C.’s testimony about her cooperation with the State and

progress on her service plan was contradictory: she stated that she did and did

not know what a service plan was and that there were misunderstandings

between herself and CPS.8 She testified both that she did and did not behave

appropriately at all CPS visits with her children. Her testimony about her

performance of the service plan was disputed by the CPS caseworker’s

testimony that E.C. had not made appropriate progress on her service plan.

With regard to her testimony about providing for her children’s medical needs,

E.C. was unable to name the doctor that the children currently went to, stating,

“I don’t know. All my kids take karate.” But she was able to name the one she

8
… E.C. testified that she attempted to work services in July when she
was released from jail, that CPS aggravated her by making her retake some
classes that she had previously taken during the earlier removal of her children
in 2004, and that no one from CPS ever took her to get her drug tests done.
She testified that she did have a job, attended visits with the children, had not
taken any drugs, did her psychological evaluation, and had been working with
her caseworker.

16
had used when the children lived with her and testified that she would take

them “[f]or their checkup.”

The trial court could have reasonably resolved the only disputed fact,

E.C.’s service plan performance, in favor of the endangerment finding based on

the CPS caseworker’s testimony and E.C.’s own testimony about the service

plan. Reviewing the evidence in the light most favorable to the endangerment

finding and the judgment, we conclude that the trial court could have

reasonably formed a firm belief or conviction that E.C.’s conduct endangered

her children. See J.P.B., 180 S.W.3d at 573. And, giving due deference to the

trial court’s finding, with regard to the entire record, the trial court could also

have reasonably formed the same firm conviction or belief that E.C.’s conduct

met the requirements of subsection (E). See H.R.M., 209 S.W.3d at 108; C.H.,

89 S.W.3d at 28. Therefore, we conclude that the evidence was both legally

and factually sufficient to terminate E.C.’s parental rights based on the

endangerment by conduct ground in subsection (E), and we overrule her second

issue.9

9
… Because, along with a best interest finding, a finding of only one
ground alleged under section 161.001(1) is sufficient to support a judgment of
termination, we need not address E.C.’s first and third issues. See Tex. R.
App. P. 47.1; see also E.M.N., 221 S.W.3d at 821.

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C. Best Interest

In her fourth issue, E.C. complains that the evidence is not factually

sufficient to support the trial court’s best interest finding under section

161.001(2) of the family code.

Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)

(Vernon 2002). There is also a strong presumption that keeping a child with

a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). Nonexclusive factors that the trier of fact in a termination case may use

in determining the best interest of the children include the children’s desires;

the children’s emotional and physical needs, now and in the future; the

emotional and physical danger to the children now and in the future; the

parental abilities of the individuals seeking custody; the programs available to

assist these individuals to promote the best interest of the children; the plans

for the children by these individuals or by the agency seeking custody; the

stability of the home or proposed placement; the acts or omissions of the

parent which may indicate that the existing parent-child relationship is not a

proper one; and any excuse for the acts or omissions of the parent. Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

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 These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

E.C. specifically contends that the evidence at trial presents a clear

conclusion that termination of her parental rights is not in the children’s best

interests when considered in light of the children’s emotional and physical

needs and the excuses for her acts or omissions. With regard to the children’s

emotional and physical needs, now and in the future, she claims, based on her

testimony that D.L.’s emotional state has declined since his placement in foster

care and that M.C. failed to advance to first grade, that there have clearly been

significant setbacks in the children’s emotional development since their

removal.

Some of E.C.’s evidence is contradicted by her own testimony: she

testified that M.C. “flunked” kindergarten “due to the fact that [E.C.] went to

jail.” E.C. testified that there was nothing wrong with D.L. when she left him

and that she never used foul language in front of her children. The CPS

19
caseworker testified that D.L. was not speaking at an appropriate level, that he

was receiving speech therapy, and that he would use foul adult language after

visits with his biological family members. She testified that M.C. and N.L.

receive tutoring through their school, lots of help from their foster mother, and

counseling.

E.C. next argues that, with regard to excuses for her acts or omissions,

there was “ample evidence regarding difficulties that [she] encountered while

attempting to parent the children,” including evidence indicating that she was

a victim of severe mental, physical, and sexual abuse; that she encountered

administrative difficulties with CPS that prevented her completion of some of

the services in her service plan; and that her incarceration hampered her ability

to complete the services. Notwithstanding E.C.’s undisputed problems,

however, the record reflects that the trial court could have reasonably

concluded that some, if not all, of E.C.’s problems stemmed from her own

choices, made without apparent regard for the best interest of her children.

The CPS caseworker testified that all three children had been in the same

foster home for six to seven months, that the children had stability in that

home, that the children were progressing because of that stability, and that it

would be disruptive to the children’s progress to be returned to E.C. because

each time the children visited with their biological family members, “there is a

20
behavioral and emotional regression.” She testified that the State’s plan for the

children was for them to be adopted by their current foster parents. The

children’s attorney ad litem also testified that the foster home was very stable,

that the foster family took good care of them, that the foster mother told him

that she was willing to adopt the children, and that he thought she would be

the best person to adopt them. E.C. testified that she had a place for the

children to stay, but she provided no description, other than to establish that

the children had “somewhere to stay” in the house that her grandfather left to

the family.

The CPS caseworker testified that she had observed the children with

their foster family, that they seemed very relaxed, that they referred to their

foster mother as “Mom,” and that they acted like they were at home. The

children’s attorney ad litem testified that the children reported to him that they

enjoyed the environment in the foster home; he also testified that he thought

the children’s visits with their biological family had a negative effect on the

children.

Based on the entire record, the trial court could have reasonably formed

a firm conviction or belief that termination of E.C.’s parental rights would be in

the best interest of the children. See C.H., 89 S.W.3d at 28. Therefore, we

21
conclude that the evidence to support the trial court’s best interest finding was

factually sufficient, and we overrule E.C.’s fourth issue.

IV. Conclusion

Having overruled E.C.’s dispositive issues,10 we affirm the trial court’s

judgment terminating E.C.’s parental rights to M.C., N.L., and D.L.

PER CURIAM

PANEL: MCCOY, HOLMAN, and GARDNER, JJ.

DELIVERED: October 9, 2008

10
… See Tex. R. App. P. 47.1.

22