in the Interest of J.A.W., J.A.W., J.E.W., and J.A.W., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-215-CV

IN THE INTEREST OF J.A.W., J.A.W.,
J.E.W., AND J.A.W., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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Appellant Jason W. appeals the order terminating the parent-child

relationship between him and his four children. We affirm.

Background

The Texas Department of Family and Protective Services (“the

Department”) filed a petition to terminate the parent-child relationship between

Starla H. and six of her children—Alice, Betty, Charles, David, Eric, and Flora

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… See Tex. R. App. P. 47.4.
(all pseudonyms) and between the children and their respective fathers. Jason

is the father of Charles, David, Eric, and Flora and was married to Starla at the

time of trial. This appeal concerns only the relationship between Jason and his

four children.

Susan Rial, a Department investigator, testified that she received a

referral in March 2004 concerning Starla and Jason when Starla accused Jason

of sexually abusing her daughters, having guns in the family home, and dealing

and using drugs. Jason accused Starla of having a crack cocaine problem and

told Rial that Starla would be away from home for days at a time on crack

binges. Rial asked Jason to submit to a drug test; he refused to submit to the

test immediately as Rial requested, but when he did submit to the test, it was

negative. Starla’s seventh child—Gertrude (a pseudonym)—told Rial that Jason

had shown her his penis and asked her to scratch it, but she refused. Alice told

Rial that she was aware of her mother’s drug use and described an occasion

when Starla grabbed the steering wheel of a moving car and tried to run the car

off the road while stating that she did not want to live anymore. The

Department offered services to Starla and Jason so that the three boys could

remain in the home. Later, Starla told Rial that her original allegations against

Jason were false. Eventually, the Department agreed to allow the girls to live

with a relative in Louisiana while the boys remained with Starla and Jason.

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Jason told Rial that he would not allow Starla in the family home if she used

drugs again. Rial said that the disposition of the sexual abuse allegation against

Jason was “[r]eason to [b]elieve.”

Rial testified that she received another referral in July 2004 concerning,

among other things, allegations that Jason had “pulled a shotgun” on Starla.

Law enforcement officers also reported that Starla was using drugs and that

“the house was a mess, dirty diapers lying around with flies.” Rial discovered

that Jason, Starla, and the boys were living with Starla’s mother, Peggy; Alice

was living there, too, not in Louisiana as Jason and Starla had agreed. Starla

told Rial that she was just coming off another crack binge and that she wanted

to get into a rehabilitation program. Starla also told Rial that the family car had

recently been stolen and that it had $5,000 cash in it at the time; this

concerned Rial because Starla had previously told her that Jason dealt drugs.

Jason refused to take a drug test. Rial told Jason and Starla that she was

reopening their case for safety services and that “this time it would have to

happen.” Rial determined that Jason, Starla, and the children could stay with

Peggy for the time being.

Rial lost contact with Jason and Starla when they left Peggy’s apartment

with the boys (Alice continued to live with Peggy). In September, Rial learned

that Jason had been arrested for charges stemming from the shotgun incident,

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and Starla told her that she was pressing charges for “beating her and pulling

a shotgun on her.” Starla agreed to go into drug treatment and leave the

children with Peggy. Jason told Rial that he did not think the children would

be safe with Starla. Rial eventually closed the case with the disposition

“[r]eason to [b]elieve for neglectful supervision” and “physical neglect” against

both Jason and Starla. Rial also testified that Jason “took action such as

calling the police or making reports because he felt that his children would not

be safe with Starla.”

Kamesha Gray, another Department investigator, testified that she

received a neglectful-supervision referral concerning the family in March 2006.

She learned that Jason was in prison and that the children were home alone for

up to a week without Starla. Gray interviewed Gertrude, who said that the

children had been home alone for a week after Starla said she was “going to

pick up some chicken and . . . never returned.” Gertrude said that Alice was

taking care of the other children. Gertrude also said that Starla was pregnant

and using drugs. Betty and Charles essentially told Gray the same thing. Gray

also interviewed Alice, whom she described as “very, very upset” because she

was “having to basically support children at [age] 13 and go to school.” The

Department arranged for the children to stay with family friends.

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 Gray located Starla, who admitted to having left the children alone,

agreed to place the children with the family friends, and said she would “do

anything that it took” to get the kids back. Starla entered a twenty-eight-day

in-patient rehabilitation program.

Gray transferred the case to Department caseworker Lamorra Cornelius.

Cornelius testified that Starla was discharged from the rehabilitation program

after about two weeks because of her advanced pregnancy. After her

discharge, Starla continued to attend outpatient rehabilitation sessions and

parenting classes. Cornelieus was not able to verify that Starla completed the

classes. Jason remained incarcerated. Meanwhile, the children’s temporary

placement with family friends broke down, so the Department allowed them to

return to Starla. After the children returned to her, Starla stopped attending

rehabilitation sessions and parenting classes and failed to submit to drug testing

when so requested. Flora was born about thirty days after the Department

returned the other children to Starla. Although Cornelius was concerned that

the children were not safe with Starla, she had no choice but to close the case,

which she did in October 2006.

Another Department investigator, Florence Olugbuyi, received a referral

involving Starla and the children in December 2006 after police found the

children at home alone. Alice told her that Starla had been gone for several

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days and was using drugs again. Jason was still incarcerated, and Olugbuyi

learned that Starla was in jail, too. The Department placed the children in

foster care. Olugbuyi interviewed Starla in jail, and Starla told her that Jason

was incarcerated because he had been in a car with someone who had drugs

on him. Starla told Olugbuyi that she did not intend to be involved with Jason

again. Starla was allowed visitation with the children upon her release from jail,

and Olugbuyi said that the visits were appropriate and that the children

appeared to be bonded with Starla. Olugbuyi saw no indication that Jason ever

tried to contact the children.

Whitney Lagadinos, another Department caseworker, testified that

Charles told her that Jason had tried to cut Starla with a knife and that Charles

and his siblings had witnessed the altercation. She also testified that Jason had

convictions for possession of controlled substances and for possession of a

short-barreled firearm, a deferred adjudication for assault/bodily injury to a

family member, and a judgment nisi for evading arrest.

Jeremy Pike, a Department caseworker, testified that Starla told him that

Jason had tried to kill her in August 2007. He said that Starla relapsed into

cocaine use in August and November 2007. Pike testified that Jason had not

participated in any service plans. At the time of trial, Charles was living at the

Nacogdoches Boys’ Ranch, where he continued “to improve and improve.”

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David and Eric were living with a foster family and attending a Head Start

program. Pike said that the children were very bonded to one another, and the

Department’s plan was for one family to adopt all four of Jason’s children.

Arlington police officer Barbara Kelly testified that she responded to a

domestic violence call in October 2007 and found Jason holding a butcher knife

to a pregnant woman’s throat. Apparently, Starla was also present—she was

listed on the police report as a victim—but she was not the woman Jason

threatened with the knife.

Jason testified that he was incarcerated at the time of trial and had been

since October 2007 (he also described an earlier period of incarceration, but the

testimony is confusing). He said, “[I]f you want me to sign a paper right now

saying to trade my life for [the children’s] freedom to whoever I choose, I will

sign that paper, but I’m never going to relinquish my rights, because I love my

children.” But he was unable to provide an answer when asked where the

children would go if the trial court relinquished them to his custody other than

saying, “I’m sure I have family members that would at least help me get on my

feet and they wouldn’t leave my children without food.”

The trial court found that Jason had knowingly placed or knowingly

allowed the children to remain in conditions or surroundings that endangered

the physical or emotional well-being of the children, engaged in conduct or

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knowingly placed the children with persons who engaged in conduct that

endangered the physical or emotional well-being of the children, and

constructively abandoned the children. See Tex. Fam. Code Ann.

§ 161.001(1)(D), (E), (N) (Vernon Supp. 2008). The trial court further found

that termination was in the children’s best interest, and it terminated the

parent-child relationship between Jason and his children and appointed the

Department to serve as their permanent managing conservator.

Discussion

In four issues, Jason argues that the evidence is factually insufficient to

support the grounds for termination and the trial court’s best-interest finding.

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). In a termination case, the State seeks not just to limit parental

rights but to erase 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) (Vernon

2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize

termination proceedings and strictly construe involuntary termination statutes

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in favor of the parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250

S.W.3d 161, 167 (Tex. App.—Fort Worth 2008, 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).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Evidence is clear

and convincing if it “will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” Id.

§ 101.007 (Vernon 2002). Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243

S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

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

deference to the factfinder’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 factfinder could reasonably form a firm

conviction or belief that the parent violated the relevant conduct provisions of

section 161.001(1) and that the termination of the parent-child relationship

would be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex.

2002). 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 reasonably have formed a firm belief or conviction in the

truth of its finding, then the evidence is factually insufficient. H.R.M., 209

S.W.3d at 108.

1. Endangering Conduct

In his second issue, Jason argues that the evidence is factually

insufficient to support the trial court’s endangering-conduct finding. He argues

that the evidence proves he was a good father when he was not in jail and that

when he was in jail, he had no control over the conditions and conduct to

which the children were exposed.

The record shows that even when Jason was not incarcerated, he failed

to protect his children from Starla’s days-long cocaine binges and absences

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from the family home. Rial conceded that Jason would call the police when he

thought it was unsafe to leave the children with Starla, but the record also

shows that he did nothing to remove the children from that environment. To

the contrary: he made the environment worse by dealing drugs out of the home;

the children told Department employees that white powder and scales were in

plain view in the family home. Further, Jason refused the Department’s request

for one drug test and delayed another, from which a factfinder could reasonably

infer that he was taking drugs, too. See In re W.E.C., 110 S.W.3d 231, 239

(Tex. App.—Fort Worth 2003, no pet.); In re D.M., 58 S.W.3d 801, 813 (Tex.

App.—Fort Worth 2001, no pet.). A parent’s failure to remain drug-free while

under the Department’s supervision will support a finding of endangering

conduct under subsection (E) even if there is no direct evidence that the

parent’s drug use actually injured the child. Vasquez v. Tex. Dep’t of Protective

& Regulatory Servs., 190 S.W .3d 189, 196 (Tex. App.—Houston [1st Dist.]

2005, pet. denied) (holding mother’s drug use while failing to protect children

constituted endangerment without need to show that she directed her conduct

at child or that child actually suffered injury). Jason also behaved violently in

the family home; on one occasion, he threatened Starla with a shotgun, and on

another occasion, he attempted to cut her with a knife in front of the children.

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 Moreover, although Jason argues that his incarceration weighs against a

finding of endangerment, we have previously held that imprisonment is a fact

properly considered on the issue of endangerment and can support a finding of

endangerment. In re D.M., 58 S.W.3d at 812 (citing Boyd, 727 S.W.2d at

533–34). The State need not show that the incarceration itself was a result

of a course of conduct endangering the child; it need only show that

incarceration was part of a course of conduct endangering the child. Id.

“Thus, if the evidence, including imprisonment, proves a course of conduct that

has the effect of endangering the child, the requirement of subsection E is

met.” Id. (citing Boyd, 727 S.W.2d at 533–34).

It appears from the record that Jason was incarcerated during most of the

time that the Department was involved with his family. At the time of trial in

May 2008, Jason had been jailed since October 2007, and he had also been in

jail from March 2007 until June 2007. Before that, he had also been in jail for

eleven months for possession of a controlled substance. He may not have been

able to influence the children’s environment when he was in jail, but the fact

that he engaged in behavior that resulted in incarceration and left his children

to cope with their drug-addicted mother on multiple occasions is some evidence

of endangering conduct. The conduct for which Jason was jailed at the time

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of trial is particularly significant, namely, assaulting a pregnant woman with a

butcher knife.

Based on the entire record, we hold that a factfinder could reasonably

form a firm conviction or belief that Jason engaged in conduct or knowingly

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

physical or emotional well-being of the children. See C.H., 89 S.W.3d at 28.

Therefore, the evidence is factually sufficient to support the trial court’s

findings under section 161.001(1)(E). We overrule Jason’s second issue.

Because a finding of a single violation of 161.001(1) will support termination

when coupled with a finding that termination is in the children’s best interest,

we need not address Jason’s first and third issues, in which he argues that the

evidence is factually insufficient to support the trial court’s findings that he

violated paragraphs (D) and (N) of section 161.001(1). See Tex. Fam. Code

Ann. § 161.001(1); Tex. R. App. P. 47.1; In re W.J.H., 111 S.W.3d 707, 715

(Tex. App.—Fort Worth 2003, pet. denied).

2. Best Interest

In his fourth issue, Jason challenges the factual sufficiency of the trial

court’s best-interest finding. There is 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). Prompt and permanent placement of the child in a safe

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environment is also presumed to be in the child’s best interest. Tex. Fam. Code

Ann. § 263.307(a) (Vernon 2002). Nonexclusive factors that the trier of fact

in a termination case may use in determining the best interest of the child

include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and
in the future;

(C) the emotional and physical danger to the child now and
in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to
promote the best interest of the child;

(F) the plans for the child by these individuals or by the
agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and

(I) any excuse for the acts or omissions of the parent.

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

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

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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.

In this case, there was no evidence of the children’s desires. As for the

physical and emotional needs of and dangers to the children now and in the

future, the record showed that Jason had no present plan for providing for his

children while he was in jail and that the children were doing well in foster care.

Nor did Jason explain how he would provide a stable home for his children now

or upon his eventual release from jail. He testified that he was willing to die for

his children if he could choose with whom they would live, but he could not say

who would take care of his children except for the vague statement that his

unnamed family members would not allow them to starve. Nor did Jason

maintain contact with the children when he was incarcerated. During those

rare intervals when Jason was not in jail, he demonstrated poor parenting skills

by exposing his children to drug traffic and violence in the family home.

With regard to the programs available to assist the persons caring for the

children and the Department’s plans for them, Rial testified that she attempted

to set up services for Jason and Starla repeatedly. While Starla attempted

some services, Jason attempted none; nor did he request a service plan while

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he was in jail. Pike testified that the children were adoptable and wanted to

place all four of Jason’s children with one family.

From this evidence, a reasonable factfinder could form a firm belief or

conviction that termination of Jason’s parental rights is in the children’s best

interest. Thus, we hold that the evidence is factually sufficient to support the

trial court’s best-interest finding, and we overrule Jason’s fourth issue.

Conclusion

Having overruled Jason’s second and fourth issues, and not reaching his

first and third issues, we affirm the trial court’s termination order.

PER CURIAM

PANEL: GARDNER, J.; CAYCE, C.J.; and WALKER, J.

DELIVERED: March 5, 2009

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