in the Interest of I.L.M.

Opinion issued March 17, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00798-CV
———————————
IN THE INTEREST OF A.A.M. AND J.M., children

On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2011-00219J

&
————————————
NO. 01-14-00801-CV
———————————
IN THE INTEREST OF I.L.M., a child

On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2013-04476J
 OPINION

In this consolidated parental termination case, the Department of Family and

Protective Services requested termination of the father’s parental rights to his three

children, A.A.M., J.M., and I.L.M. The trial court granted the Department’s

request. On appeal, the father contends that the evidence is legally and factually

insufficient to support termination of his parental rights. He further contends that

the trial court erred when it considered evidence of conduct adduced in connection

with the Department’s earlier, unsuccessful request for termination of his rights.

Finding no error, we affirm.

Background

In 2010, the father resided with his sons A.A.M., born in December 2006,

and J.M., born in December 2008, together with his sons’ mother. Child Protective

Services received a report of violence in the home, and specifically that the father

was using drugs and physically harming the children. In December 2010, a

caseworker investigated the residence, finding inoperative kitchen appliances, little

furniture, and no food. During the visit, the father became angry and told the

caseworker to take the children. He admitted to smoking marijuana and tested

positive for marijuana in a drug test administered the following day. Over the next

three years, the father tested positive for marijuana and cocaine multiple times. He

also was intermittently incarcerated prior to the children’s removal.

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 In 2011, the Department petitioned to become the temporary managing

conservator of A.A.M. and J.M. and sought to terminate the father’s parental

rights. In 2012, the trial court appointed the Department as sole managing

conservator, but it did not grant the Department’s termination request. In August

2012, the Department placed A.A.M. and J.M. with their current foster placement,

and in January 2014, it again moved to terminate the father’s and mother’s parental

rights.

In December 2011, the father and mother had another child, I.L.M. When

I.L.M. tested positive for marijuana at birth, the Department received a referral. In

2012, in a separate proceeding, the Department petitioned to be appointed

temporary managing conservator of I.L.M. In December 2012, the trial court

appointed I.L.M.’s grandmother as sole managing conservator, and the mother and

father as possessory conservators. In August 2013, the Department petitioned to

modify the order and requested that it be appointed temporary managing

conservator. It later amended to seek termination of the father’s parental rights.

The trial court consolidated the cases. In September 2014, after a bench

trial, the trial court terminated the parental rights of the father and mother. The

father appeals the trial court’s termination order.

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 Discussion

Standard of Review

A parent’s right to the care, custody, and control of his child is a liberty

interest protected under the Constitution, and we strictly scrutinize termination

proceedings on appeal. Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct.

1388, 1397 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and

convincing evidence must support an involuntary termination. Holick, 685 S.W.2d

at 20 (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92). Clear and

convincing evidence is “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 (West 2014).

When determining legal sufficiency in a parental-rights termination case, we

review “all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction

that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We

assume that the factfinder resolved disputed facts in favor of the judgment if a

reasonable factfinder could have done so. Id. We disregard “evidence that a

reasonable factfinder could have disbelieved or found to have been incredible.” Id.

If a court determines that no reasonable factfinder could form a firm belief or

conviction that the matter that must be proven is true after conducting its legal-

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sufficiency review, the court must conclude that the evidence is legally

insufficient. Id.

In determining factual sufficiency, we consider the entire record, including

disputed evidence, to determine “whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction” about the truth of the allegation

sought to be established. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (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, then the evidence is

factually insufficient.” J.F.C., 96 S.W.3d at 266.

To prevail in a termination case, the Department must establish that one or

more of the acts or omissions enumerated under Texas Family Code

section 161.001(1) occurred and that the termination is in the best interest of the

children, pursuant to section 161.001(2). TEX. FAM. CODE ANN. § 161.001. In this

case, the father challenges the trial court’s findings that he endangered the children

and that he failed to comply with the court-ordered family services plan. He does

not challenge the trial court’s finding that termination is in the best interest of the

children.

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 Analysis

1. Admission of Evidence

The father first contends that the Department improperly relied on evidence

introduced in prior termination proceedings, including his drug use and criminal

history, because the trial court already heard and decided those allegations and

denied the request to terminate the father’s parental rights. Pursuant to Texas

Family Code section 161.004(a), however, a court “may terminate the parent-child

relationship after rendition of an order that previously denied termination” if the

circumstances of the child, parent, conservator, or other party affected by the

previous order have “materially and substantially changed” since the date of the

order. TEX. FAM. CODE ANN. § 161.004(a). And section 161.004(b) expressly

authorizes the trial court to consider evidence presented at a previous hearing in a

later termination proceeding for the same child. Id. § 161.004(b).

The father acknowledges the provisions of section 161.004, but argues that

the Department did not plead for termination based on changed circumstances, but

instead requested termination under the more general governing statute found in

section 161.001. Citing In re S.M.R. and Vasquez v. Texas Department of

Protective & Regulatory Services, the father argues that consideration of his earlier

conduct was error because he did not receive adequate notice that the Department

would rely on it. See In re S.M.R., 434 S.W.3d 576 (Tex. 2014), and Vasquez, 190

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S.W.3d 189 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). In S.M.R., the

Texas Supreme Court approved courts of appeals decisions, holding that

“termination can only be upheld on a ground that was both pleaded by the party

seeking termination and found by the trier of fact.” 434 S.W.3d at 581 (quoting In

re K.G., 350 S.W.3d 338, 345–46 (Tex. App.—Fort Worth 2011, pet. denied).

Citing In re D.N. and In re K.G., the father argues that a trial court may terminate

parental rights based on evidence introduced in prior termination proceedings only

if the petitioner pleads section 161.004. See In re D.N., 405 S.W.3d 863, 870 (Tex.

App.—Amarillo 2013, no pet.); K.G., 350 S.W.3d at 352.

The Department responds that it pled the elements of section 161.004,

including that the circumstances of a party affected by the previous order had

materially and substantially changed; thus, the trial court’s reliance on the father’s

entire course of conduct was proper. It further responds that the trial court

specifically found that the children’s circumstances had changed.

We agree with the Department. With regard to the pleadings, although, as

the father observes, the Department did not expressly name the statute by its code

number in its petitions, it pleaded the statutory elements for modification of an

earlier order, including materially changed circumstances. Both live petitions state

that the “circumstances of the children, a conservator, or other party affected by the

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order have materially and substantially changed since the date of the rendition of

the order,” and that the “orders are in the best interest of the children.”

The father observes that the Department’s allegations are contained within

the conservatorship section of the petitions, not the termination section. But he did

not specially except to the Department’s petitions. Broadly construing the

petitions in the absence of a special exception, the Department’s pleadings notified

the father that his earlier conduct would be at issue. See Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Because the father did not

specially except to the pleadings, he waived any complaint about the perceived

lack of notice from the omission of a specific reference to section 161.004 in the

pleadings. See Att’y Gen. v. Lavan, 833 S.W.2d 952, 954 (Tex. 1992) (“[B]ecause

the record does not show that [respondent] complained of the breadth of, or any

ambiguity in the State’s pleadings, we hold that any failure of the petition to

specifically cite the State’s reliance upon [the statute] is waived.”) (citing TEX. R.

CIV. P. 90).

Additionally, the father did not object at trial to evidence of his earlier drug

test results. Because he did not object to the trial court’s consideration of evidence

about events that occurred prior to the previous orders denying termination, he may

not raise this challenge for the first time on appeal. See TEX. R. APP. P. 33.1; In re

K.A.F., 160 S.W.3d 923, 928 (Tex. 2005).

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 Finally, the cases on which the father relies are distinguishable. In In re

S.M.R., the Texas Supreme Court declined to supply omitted grounds in a parental-

rights termination case based on the pleadings where the trial court had declined to

find the ground as a basis for termination in the judgment. 434 S.W.3d at 581–82.

Similarly, in Vasquez, we declined to uphold a trial court’s parental-rights

termination order on grounds different from those stated in the final order. 190

S.W.3d at 194. In contrast to these cases, here the trial court found in its

termination orders that the circumstances of the parties had materially and

substantially changed since its prior orders and that evidence relating to events

occurring before the prior orders was admissible pursuant to section 161.004.

Accordingly, we hold that the trial court properly considered evidence presented in

earlier termination proceedings.

2. Endangerment

Under section 161.001, one of the predicate findings for a parental-rights

termination is satisfied if the parent has “engaged in conduct or knowingly placed

the child with persons who engaged in conduct which endangers the physical or

emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(1)(E). To

“endanger” a child means to expose to loss or injury or to jeopardize. Tex. Dep’t

of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although

endangerment means “more than a threat of metaphysical injury or the possible ill

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effects of a less-than-ideal family environment, it is not necessary that the conduct

be directed at the child or that the child actually suffers injury.” Id. Courts may

consider parental conduct that did not occur in the child’s presence, including

conduct before the child’s birth. Walker v. Tex. Dep’t of Family & Protective

Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

Drug abuse and its effect on the ability to parent can be part of an

endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).

Illegal drug use creates the possibility that the parent will be impaired or

imprisoned and thus incapable of parenting. Walker, 312 S.W.3d at 617. When a

parent’s imprisonment demonstrates a deliberate course of conduct, it too qualifies

as endangering conduct. Id. (citing Avery v. State, 963 S.W.2d 550, 553 (Tex.

App.—Houston [1st Dist.] 1997, no writ). Drug use and the imprisonments

relating to it harm the physical and emotional well-being of a child. Id. (citing In

re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)). In

addition, abusive and violent conduct by a parent in a family relationship may

endanger a child’s well-being. Id. (citing In re B.R., 822 S.W.2d 103, 106 (Tex.

App.—Tyler 1991, writ denied)).

The Department presented evidence of the father’s criminal record both

before and after the birth of his children. Although many of these convictions

occurred before the birth of these children, several did not. Notably, in 2010, he

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was convicted for an assault of a family member. As late as 2013, he was

convicted of theft by check.

The father also tested positive for marijuana and cocaine multiple times from

2011 to 2014, during the period the children were in the Department’s care. In

January 2011 and January 2012, he tested positive for marijuana and cocaine. In

November 2011, he tested positive for cocaine. In March 2012, he tested positive

for cocaine and marijuana. During May and September 2012; March, August, and

October 2013; and February 2014, he tested positive for cocaine.

The father observes that he merely exercised visitation during these periods

of positive drug tests and criminal activity; he was not the custodial parent.

Nevertheless, because they significantly harm the parenting relationship, criminal

offenses and drug activity can constitute endangerment even if the criminal

conduct transpires outside the child’s presence. See Boyd, 727 S.W.2d at 533;

Walker, 312 S.W.3d at 617; J.O.A., 283 S.W.3d at 345. The trial court also heard

evidence of the father’s conviction for assault, which involved family violence,

during his limited contact with his children before the Department’s involvement.

Evidence of the father’s abuse of a family member permits an inference that the

person will continue abusive behavior in the future. See Walker, 312 S.W.3d at

617. Based on the evidence adduced at the hearing, the trial court reasonably

could have concluded that the father’s continued pattern of drug use, even after the

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Department’s involvement, displayed a voluntary, deliberate, continued, and

conscious course of endangering conduct, establishing materially changed

circumstances from those present when it signed its initial 2012 orders. See id.

Accordingly, we hold that the evidence is legally sufficient to support its finding of

endangerment. See J.F.C., 96 S.W.3d at 266; Walker, 312 S.W.3d at 617; J.O.A.,

283 S.W.3d at 345.

The father challenged the Department’s evidence of his positive drug test

results by cross-examination of the Department’s expert witness. The witness

agreed in general terms that errors can occur in drug testing. He also

acknowledged that the testing samples are typically destroyed in 7 days. The

father did not present evidence of any error relating to his specific drug test results.

Viewing the evidence in a light favorable to the fact finder, we conclude that the

contrary evidence at trial is not so overwhelming as to undermine the trial court’s

firm conviction that the father’s conduct endangered the children. See J.F.C., 96

S.W.3d at 266. Accordingly, we hold that the evidence is factually sufficient to

support the trial court’s finding. See id. Because the evidence supports the trial

court’s endangerment findings, we need not reach the father’s arguments

challenging the trial court’s finding that he failed to comply with the court-ordered

family services plan.

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 Conclusion

We hold that the trial court did not err in considering evidence of events

prior to the initial orders denying parental termination. We further hold that the

evidence was legally and factually sufficient to support the father’s parental-rights

termination based on child endangerment. The trial court’s finding that

termination is in the children’s best interests is unchallenged on appeal.

Accordingly, we affirm the order of the trial court.

Jane Bland
Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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