in the Interest of G.H. and G.H., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00310-CV

IN THE INTEREST OF G.H. AND
G.H., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-97764J-13

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MEMORANDUM OPINION 1

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Appellants G.D.H. (Father) and K.B. (Mother) appeal from the trial court’s

order terminating their rights to twins G.H. and G.H. (Boy and Girl). Father

complains in three issues that the evidence is legally and factually insufficient to

support the trial court’s best-interest, endangerment, and constructive-

1
See Tex. R. App. P. 47.4.
abandonment findings 2 and that the trial court abused its discretion by admitting

exhibits relating to his criminal history that occurred more than ten years before

trial. In three issues, Mother complains that the evidence is legally and factually

insufficient to support the trial court’s endangerment and best-interest findings. 3

Because we hold that the evidence is legally and factually sufficient to support

the trial court’s judgment and that any error in the admission of exhibits relating

to Father’s criminal history from more than ten years before trial is harmless, we

affirm the trial court’s judgment.

Sufficient Evidence of Endangerment

In her first two issues, Mother contends that the evidence is legally and

factually insufficient to support the trial court’s endangerment findings. Within his

first two issues, Father raises the same complaints. As we have previously

explained,

Endangerment means to expose to loss or injury, to jeopardize. The
trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has knowingly
placed or knowingly allowed the child to remain in conditions or
surroundings that endanger the physical or emotional well-being of
the child. Under subsection (D), it is necessary to examine evidence
related to the environment of the child to determine if the
environment was the source of endangerment to the child’s physical
or emotional well-being. Conduct of a parent in the home can create
an environment that endangers the physical and emotional well-
being of a child.

2
See Tex. Fam. Code Ann. §161.001(1)(D)–(E), (N), (2) (West 2014).
3
See id. §161.001(1)(D)–(E), (2).

2
 . . . . 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. Termination under
subsection (E) must be based on more than a single act or omission;
a voluntary, deliberate, and conscious course of conduct by the
parent is required.

To support a finding of endangerment, the parent’s conduct
does not necessarily have to be directed at the child, and the child is
not required to suffer injury. The specific danger to the child’s well-
being may be inferred from parental misconduct alone, and to
determine whether termination is necessary, courts may look to
parental conduct both before and after the child’s birth. . . . As a
general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the child’s physical and emotional well-being.

Additionally, a parent’s mental state may be considered in
determining whether a child is endangered if that mental state allows
the parent to engage in conduct jeopardizing the child’s physical or
emotional well-being. . . . [E]ven if a parent makes dramatic
improvements before trial, evidence of improved conduct, especially
of short-duration, does not conclusively negate the probative value
of a long history of . . . irresponsible choices. 4

We have also stated,

Abusive or violent conduct by a parent may produce an
environment that endangers the child’s physical or emotional well-
being, as may parental drug use and drug-related criminal activity.
Drug use and its effects on a parent’s life and ability to parent may
likewise prove an endangering course of conduct. Additionally, even
though imprisonment alone does not prove that a parent engaged in
a continuing course of conduct that endangered the physical or

4
In re L.E.M., No. 02-11-00505-CV, 2012 WL 4936607, at *2 (Tex. App.—
Fort Worth Oct. 18, 2012, no pet.) (mem. op.) (citations and internal quotation
marks omitted).

3
 emotional well-being of his child, it is nevertheless a factor that we
may properly consider on the issue of endangerment. 5

Mother, who was twenty-four years old at trial, began drinking alcohol at

the age of fifteen, smoking marijuana at the age of seventeen, and using cocaine

at the age of twenty-one. She testified that she had been with Father since she

was eighteen years old. A year before her pregnancy with the twins, she was

arrested for possession of marijuana. She gave birth prematurely to the twins in

September 2012. Mother and the newborn babies tested positive for cocaine

and marijuana. But Mother testified that she knowingly used only marijuana

during the pregnancy and that Father did not know about her cocaine use until

after the delivery.

After the twins tested positive for drugs, the Texas Department of Family

and Protective Services (TDFPS) opened a family-based safety services (FBSS)

case. According to Rosalyn Hubbard, the FBSS supervisor in this case,

TDFPS’s concerns raised at the first family group conference were Mother’s drug

use, Father’s suspected drug use, “a profound suggestion that he basically was

controlling her,” and the babies’ health issues. Mother admitted drug use at her

assessment and signed an acknowledgment of drug use on November 5, 2012.

But she went to inpatient rehab at VOA Light in November 2012, still testing

positive for cocaine and marijuana, and the children were placed with her there in

5
In re S.G., No. 02-14-00245-CV, 2015 WL 392772, at *5 (Tex. App.—Fort
Worth Jan. 29, 2015, no pet. h.) (mem. op.) (citations omitted).

4
December 2012 after she had made progress for a month. In January 2013,

though, after the second family group conference, Mother convinced her younger

sister, K., who also attended the family group conference, to drop her and the

twins off at a store instead of taking them directly back to the VOA Light rehab

center. Mother bought alcohol with a friend and drank a beer, and then the friend

drove Mother and the twins back to VOA Light. Once there, Mother, still under

the influence of alcohol, acted out aggressively when VOA staff refused to give

her a cigarette. VOA Light then discharged her from the program, and the twins

were removed from Mother and placed in foster care. The twins had been in

Mother’s care for only a month.

In January 2013, Mother admitted to having used ecstasy. She was also

in jail in January 2013; Father told Gladys Demus, the TDFPS caseworker, that

Mother had been arrested for domestic violence. In July and August 2013,

Mother failed to get a court-ordered hair test. In late September 2013, she

signed an acknowledgment of cocaine use.

At trial, Mother did not dispute that she continued to use drugs after

TDFPS opened its case and within a month of the initial trial setting date, but she

insisted that she had remained sober since a few days before October 28, 2013,

when she began inpatient drug rehab at Pine Street. The trial court admitted

evidence, however, that Mother continued to test positive for drugs after that date

and as late as the week before the trial began. Mother admitted to having visited

a crack lab with her best friend before an April 1, 2014 positive drug test but

5
insisted that she did not use drugs in the crack house; the trial began just six

weeks later. Demus testified that a drug house is an endangering environment

for children.

Based on the appropriate standards of review, we hold that the evidence is

legally 6 and factually 7 sufficient to support the trial court’s endangerment findings

against Mother. We overrule her first two issues.

Mother testified that Father has three other children, daughters aged

fifteen, seven, and three at the time of trial, who live with their mothers. Mother

also stated that he was in jail during her pregnancy and that she “was stuck with

his two children” and unable to work during that time, which was one of the

stressors causing her to use drugs toward the end of her pregnancy. Mother

stated that she smoked marijuana with Father before the pregnancy but that she

did not use cocaine with him until after the pregnancy and that he did not know

about her cocaine use until after the twins were born. Mother admitted at a

family group conference in January 2013 and testified at trial that she had

admitted in an October 2013 hearing that Father was her trigger for using drugs.

Drug use was also an issue for Father during the case. Father

acknowledged testing positive for cocaine on December 19, 2012, about three

6
See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012); In re J.P.B., 180
S.W.3d 570, 573–74 (Tex. 2005).
7
See In re A.B., 437 S.W.3d 498, 500 (Tex. 2014); In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

6
months after the twins’ birth and after they had been placed with his sister and

parents. Hubbard testified without objection that Father acknowledged his

cocaine use on December 19, 2012. He also tested positive on January 11,

2013, the day of the emergency removal of the twins due to Mother’s discharge

from VOA Light. Mother testified that they last used together around the

beginning of October 2013. She also testified that Father had not done anything

to stop using drugs.

Hubbard testified that at the first family group meeting, Father repeatedly

said that he could use whatever drug he wanted to and that CPS could not do

anything about it. Demus, who received the case in January 2013 from the

investigation unit, testified that at the January 2013 visit with the children, Father

similarly “said that he can do whatever he wants. He can do drugs, cocaine,

whenever he wants to, nobody can tell him what to do.”

Mother testified that Father’s criminal history includes assaults, including

an assault of the mother of two of his other children, and failure to pay child

support. Father has a history of domestic violence against the mother of two of

his other children. In 2012, he was convicted of committing assault–bodily injury

of a family member; she was the complainant. The indictment admitted without

objection with that judgment provides that he also had a 2000 assault–bodily

injury conviction for assaulting a family member and a 2002 aggravated assault

with a deadly weapon conviction. In 2010, Father was convicted of interfering

7
with public duties, and in 2005, he was convicted of the possession of less than

two grams of marijuana.

Mother admitted at trial that she had testified at a prior hearing that

physical and verbal domestic violence had also occurred in her relationship with

Father. Mother’s licensed professional counselor (LPC) testified that Mother had

reported a history of psychological abuse between Father and herself. On a visit

with the twins that coincided with the day of the emergency removal in January

2013, Father cursed and walked out of the room whenever Hubbard walked in.

He slammed doors, resulting in framed items falling off walls and breaking.

Hubbard also reported that Father told TDFPS that he had other children,

so he was not worried about the twins; Mother could do whatever she wanted to.

Father went over a year without visiting the twins, who were approximately

twenty months old at trial. He attended only five visits from the time the children

were removed in January 2013. Father also refused to complete any of the

services offered by TDFPS.

Applying the appropriate standards of review, we hold that the evidence is

legally 8 and factually 9 sufficient to support the trial court’s endangerment findings

8
See E.N.C., 384 S.W.3d at 808; J.P.B., 180 S.W.3d at 573–74.
9
See A.B., 437 S.W.3d at 500; H.R.M., 209 S.W.3d at 108; C.H., 89
S.W.3d at 28.

8
against Father. Because of this disposition, we do not reach Father’s subissues

challenging the trial court’s finding of constructive abandonment. 10

Sufficient Evidence for Best Interest Findings

In her third issue, Mother challenges the legal and factual sufficiency of the

evidence supporting the trial court’s best-interest finding against her. In the

remainder of his first two issues, Father also challenges the legal and factual

sufficiency of the evidence supporting the best-interest finding against him.

In addition to the evidence supporting the endangerment findings above,

the trial court also received evidence that Boy and Girl had special needs. They

were born prematurely, and both still had medical issues at the time of trial. Girl

was born with a congenital heart defect, was due to have open heart surgery

soon, and would have a long recovery after her surgery. Boy had colon surgery

soon after his birth, stayed in the hospital for several weeks, and was still

receiving occupational, developmental skills, and speech therapy. There was

evidence that both children have asthma and that Boy also suffers from allergies.

Boy may also have hearing loss. Both children were on daily medications. The

CASA volunteer testified that Girl will be on a heart monitor and special

medications after her surgery. Further, Girl should be confined in the hospital for

10
See Tex. R. App. P. 47.1; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003);
In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.).

9
about two weeks after her surgery, and her at-home recovery should last about

six weeks barring complications.

The evidence demonstrated that Mother and the children were bonded.

Demus testified that Mother had visited the twins consistently; that the visits were

appropriate; that Mother brought food, gifts, and clothing; that the twins and

Mother played and interacted well; and that they were bonded. Mother testified,

G[irl], she’s—she’s very smart. She’s active, talkative. She
likes to smile and dance. She likes the little song, “Go, G[irl]. Go,
G[irl]” when she does her little dance we have. You know, she’s
very—I want to say like a little drama queen. When [Boy] does
something to her, she’ll look at me and just make that little pouting—
that little pouting face and expect me to do something.

[Boy], he’s so active and aggressive and just—he always
wants to do something. He’s a very hungry little boy. He likes to
play, but sometimes he’s a little rough with his sister, but, you know,
he understands, No, [Boy]. Be nice, [Boy]. You know, he
understands. They comprehend very well. And just great babies.

Mother testified that the children had not bonded with Father and that they

cry with him. But she also said that Girl will let Father hold her. Demus testified

that Father visited the children only about five times since January 2013. He

went from March 2013 until April 2014 without seeing them at all and was

surprised to see them walking in April 2014. The CASA volunteer stated that

Father had not participated in the case whatsoever. She testified that he had

attended a few visits but “ha[d] been nonconnected with the kids and [had]

shown no interest” in them. He told her that he was not going to work his

10
services, had no intention of doing them, and expected the children to live with

his parents.

Demus testified that Mother worked her services sporadically from

February 2013 to July 2013, completing none. After TDFPS announced that its

goal was termination, though, Mother successfully completed inpatient drug

rehab at Pine Street. Father was still unwilling to complete services.

Mother testified that along with completing rehab at Pine Street, she also

completed anger management, parenting classes, yoga classes, and an

education course for domestic violence and sexual abuse. Mother missed only

one of thirteen counseling sessions with her LPC, participated in outpatient drug

classes, and provided sign-in sheets to prove her participation in Narcotics

Anonymous (NA). Mother also testified that she was taking classes to get her

GED. Demus conceded that Mother’s services had been substantially completed

after she finished her Pine Street rehab.

Mother testified that she had been employed at Estate Maids Cleaning

Service for about a month and that she worked at Schlotzky’s for seven months

before she entered Pine Tree in October 2013. She stated that her hours as a

maid vary but that she had last worked twenty-seven hours a week two weeks

before trial. She was making $7.25 per hour.

Mother had saved $200 and planned to get her own apartment when she

could afford it. At trial, she lived with a friend. Mother admitted that she had

lived in at least six places since the children’s birth. Mother also had not

11
completed special classes at the hospital for taking care of the fragile twins but

planned to complete them after trial. She also did not have a driver’s license.

But Mother did not want the twins returned to her yet anyway. She testified,

Right now, I’m trying to work on me and get all of this taken care of
as far as housing, driver’s license, my schooling. I’m—right now, I
want them to be placed with my sister so I can be able to do what I
need to do to get them back.

Upon the babies’ initial release from the hospital, they had originally lived

with paternal aunt, M., who lived with her husband and parents. TDFPS placed

the babies with Mother after she had completed about a month of inpatient drug

rehab. After TDFPS removed the babies from Mother upon her discharge from

VOA Light about a month later, M. would not let the babies live in her home

again. She told Hubbard that when the babies lived with her, Mother and Father

“came over there, ate her food, talked crazy to her, and didn’t really parent the

children.” The paternal grandparents, Father’s choice for raising the children,

could not take them because the paternal grandparents lived with M. Hubbard

testified that Father and Mother did not suggest any other relative placement

possibilities to her near the time of the children’s removal from Mother. The

babies then went to a foster home.

At the time of trial, the twins had been in the same foster home for ten

months, half their lives at that point. They were deliberately placed in a home

with a full-time parent because daycare was not appropriate with their medical

fragility. In the foster home, Girl thrived, gained weight she needed to gain in

12
order to have the heart surgery, and had been discharged from all ECI and

therapy. Boy, on the other hand, was still receiving therapy “maybe nine times

out of the month,” and there were concerns about his motor skills and his ability

to feed himself. Demus testified that in the foster home, the children were on a

special diet; they ate organic food and did not eat anything fried, and Girl also

drank PediaSure to help her gain weight. Demus testified that the foster parents

met the physical, medical, emotional, and financial needs of the children and that

she anticipated that the foster parents would also meet those needs in the future.

TDFPS’s plan was for the parental rights to be terminated and the foster parents

to adopt the twins. The foster parents already had a dual license to adopt and

wanted to adopt the children. Demus also testified that termination would be in

the children’s best interest.

Mother’s LPC testified that Mom had always named her sister, K., as an

ideal candidate for placement. Mother stated that K. had not realized what

Mother was up to when she dropped Mother off at the store instead of taking her

back to VOA Light rehab after the January 2013 family group conference.

Mother also stated that K. had visited with the twins often, had bonded with them,

and had bought clothes, diapers, and food for them.

Unlike Mother, Demus did not believe that the children should be placed

with maternal aunt K. because she had not yet gained stability and because of

Girl’s medical issue. K. had been in a relationship with T., her fiancé, for a year

at trial but had been in a relationship with someone else and pregnant before

13
that; she miscarried less than a year before trial. Further, K. had not lived in one

place for more than a year after leaving her parents’ home, T. had been at his

current job for only a few months, and K. did not know how to spell the street she

said she lived on. If the children were placed with them, Demus worried that they

would all be relying on T.’s income from his relatively new job. K. did not provide

TDFPS with her plan for raising the children.

Demus had not met K. until the day of trial. K. did not attend the

November 25, 2013 family group conference. According to Demus, K. had

visited the children only about three times during their almost eighteen months in

care. According to the CASA volunteer, T. had not met the children at all.

K. testified that she did not volunteer to raise the twins earlier in the case

because she was not stable enough but that she was ready at trial and had some

savings. She had arranged to take four months off work to take care of Girl after

her surgery. K. testified that she was committed to raising the twins regardless of

termination and that T. was also committed and pushed her to do it. K. was

already first-aid certified, CPR-certified, and certified with oxygen. She testified

that she was willing to protect the babies from their birth parents and call the

police if necessary. She testified that she went to the January 2013 family group

conference but was not told about any others.

There was evidence that K. and T. would have support from family, friends,

and church members if the twins were placed with them and that those people

believed that the young couple was mature enough and responsible enough to

14
raise the children. The couple had known each other seven years, and both

were active in working with youth at their church.

The CASA volunteer, like Demus, supported termination of both parents’

rights and placement with the foster parents. She testified that K.’s current job

was also less than a year old and that the year before trial, K. lived with relatives

after losing her apartment because of financial trouble. The CASA volunteer

conceded that K. already had some “clothes and stuff” for the children but had

only one bed and one playpen, not two beds. The trial court heard conflicting

evidence about whether K. denied to the CASA volunteer that Mother was still on

drugs.

Applying the appropriate standards of review, we hold that the evidence is

legally 11 and factually 12 sufficient to support the trial court’s best-interest findings

against Father and Mother. We overrule the remainder of Father’s first two

issues, and we overrule Mother’s third issue.

11
See In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013); E.N.C., 384
S.W.3d at 807–08; In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); J.P.B., 180
S.W.3d at 573–74; C.H., 89 S.W.3d at 27–28; Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976).
12
See A.B., 437 S.W.3d at 500; E.C.R., 402 S.W.3d at 249–50; E.N.C.,
384 S.W.3d at 807–08; R.R., 209 S.W.3d at 116; H.R.M., 209 S.W.3d at 108;
C.H., 89 S.W.3d at 27–28; Holley, 544 S.W.2d at 371–72.

15
Admission of Exhibits Harmless

In Father’s third issue, he contends that the trial court abused its discretion

by admitting Petitioner’s Exhibits 13–15 relating to his criminal history dating

back more than ten years before trial. But some of this information came in

through Mother’s testimony or through Petitioner’s Exhibit 10 without objection.

As to the rest, we found the evidence legally and factually sufficient to support

the termination of Father’s rights without relying on it. Accordingly, we hold that

even if the trial court abused its discretion by admitting the challenged exhibits,

any error was harmless. 13 We overrule Father’s third issue.

Conclusion

Having overruled Father’s three issues and Mother’s three issues, we

affirm the trial court’s judgment.

PER CURIAM

PANEL: DAUPHINOT, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DELIVERED: March 19, 2015

13
See Tex. R. App. 44.1(a); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118,
136 (Tex. 2012); Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871
(Tex. 2008); Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
2001) (op. on reh’g); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54
(Tex. 1995).

16