COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00067-CV
IN THE INTEREST OF S.L.W., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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After a bench trial, the trial court found by clear and convincing evidence
that Appellant R.W. (Father)
10.2.1 engaged in conduct or knowingly placed [S.L.W.] with
persons who engaged in conduct which endanger[ed]
[her] physical or emotional well-being . . . ; and
10.2.2 [f]ailed to comply with the provisions of a court Order
that specifically established the actions necessary for
[him] to obtain the return of [S.L.W.] who ha[d] been in
the permanent or temporary managing conservatorship
of the [Texas] Department of Family and Protective
1
See Tex. R. App. P. 47.4.
Services [TDFPS] for not less than nine months as a
result of [her] removal from the parent under Chapter
262 for the abuse or neglect of the child.
The trial court also found by clear and convincing evidence that termination of the
parent-child relationship between Father and S.L.W. was in S.L.W.’s best
interest. Based on its findings, the trial court terminated Father’s parental
relationship with S.L.W.
In three issues, Father contends that the evidence is legally insufficient to
support the findings under subsections (E) and (O) and factually insufficient to
support those findings as well as the best interest finding. 2 Because we hold that
the evidence is legally and factually sufficient to support termination, we affirm
the trial court’s judgment.
I. Statement of Facts
S.L.C. (Mother) met Father in 2003. At that time, Mother had two young
sons with B.C., her husband (Husband). Husband had been in prison since
February 2002. In 2004, the Atascosa County, Texas office of TDFPS opened a
case because of concern about Mother and Father’s drug use. But Mother
testified that Father did not complete services at that time because “[t]hey didn’t
have anything against him. It was against [Mother].” On May 7, 2005, Mother
and Father’s first child together, D.W., a son, was born. In June 2006, all three
boys were removed after the older two boys made an outcry that Father had
2
See Tex. Fam. Code Ann. § 161.001(1) (E), (O), (2) (West Supp. 2012).
2
placed plastic bags on their heads, attempting to suffocate them. The three boys
were placed with Husband’s parents.
Father moved to San Antonio, and in November 2006, Mother delivered
their second child together, G., a daughter, who was placed in foster care.
Mother acknowledged that TDFPS was worried about her ability to protect the
baby from Father because she had expressed disbelief about her elder sons’
allegations against Father. At trial, she still did not believe that he had actually
endangered them.
In March 2007, the children were all returned to Mother, who testified at
the trial in the case before us that she was not then in a relationship with Father
and that the judge in that case had recommended that Father have no contact
with her older two sons. Nevertheless, the following month, when Mother was
stopped and arrested for unpaid tickets, Father and the four children were all in
the car with her. The children were removed again because of concerns about
domestic violence between Mother and Father, and Husband’s parents were
awarded permanent managing conservatorship of the four children in May 2007.
Mother last saw the children in 2008.
In February 2009, when Mother and Father were again not together, their
third child together, R., a son, was born. Mother and R. both tested positive for
marijuana and opiates at his birth. TDFPS removed R. In January 2010, R. was
returned to Mother after she participated in services. In January or February
2010, Mother told Father about R. Father threatened to take R. to Fort Worth
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from the Corpus Christi area where Mother and R were living. Mother reported
his threat to the police on the advice of her caseworker. Also in February 2010,
Father overdosed on Tylenol and was involuntarily committed for a short time. In
March 2010, a pastor and his wife returned R. to TDFPS on Mother’s behalf. In
August 2010, Mother’s and Father’s parental relationship with R. was terminated,
and he was adopted by nonrelatives.
In April 2011, Mother moved to Azle and lived with Father. In June 2011,
she began prenatal care for S.L.W. On September 15, 2011, while Father was in
jail for unpaid warrants, S.L.W., their fourth child and second daughter, was born.
Her meconium tested positive for opiates and morphine. Father was released
from jail a few days after her birth. At that time, Father and Mother were
unemployed and living with Father’s sister. Domestic violence, prior CPS history
containing allegations of drug use, current allegations by family members of the
couple’s drug use, Mother’s prenatal use of prescription pain medicine, and her
apparent bouncing around among different doctors and hospitals for drugs were
initial concerns of CPS. S.L.W. was removed on September 19, 2011 and
placed with her foster family, Intervenors.
In September 2011, Father and Mother both appeared to be under the
influence of drugs at a visit with S.L.W. He and Mother also failed to submit to a
court-ordered hair strand drug test by the due date, October 10, 2011. Mother
tested positive for methamphetamine in November 2011 and tested positive for
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methamphetamine and amphetamine in February 2012. In February 2012,
Father refused to be tested.
In March 2012, Father appeared for services at Merit Family Services for a
psychosocial assessment. He tested positive for opiates. He also admitted to
having engaged in verbal and emotional domestic abuse against Mother and to
having anger control issues. The therapist also discussed concerns about pain
medication addiction with Father “[b]ecause of the opiates in his system and the
possible concerns that he was abusing substances.” Father recognized the
concern as appropriate. He was diagnosed with anxiety disorder and referred to
JPS.
Mother also admitted to Merit staff that her relationship with Father
included emotional and verbal abuse. She too was diagnosed with an anxiety
disorder, and she too tested positive for opiates. At trial, she admitted that
Father had been emotionally and verbally violent to her in the past and that she
had been fearful for her safety and that of her children.
By August 20, 2012, Father had completed his initial court-ordered service
plan except for drug tests. On August 20, 2012, the trial court, with CPS’s
agreement, was prepared to order a monitored return of S.L.W. to Mother and
Father conditional on negative hair drug tests. Mother’s test was negative, but
Father tested positive for methamphetamine, amphetamine, and marijuana. The
monitored return therefore did not happen, but, with TDFPS’s agreement, the trial
court extended the case for six months and ordered Mother and Father to
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complete additional services. The caseworker testified that she told Father by
telephone that he needed to complete the additional court-ordered services but
that she did not provide a copy of the order to Father. Father’s lawyer, among
others, approved the order as to form. There was no testimony whether his
lawyer provided Father with a copy of the order. After August 31, 2012, Father
nevertheless failed to appear for a new drug screening and assessment,
attended only one session of couples therapy, failed to submit Narcotics
Anonymous sign-in sheets, and refused to submit to random drug tests.
Mother testified that she broke up with Father in December 2012, the
month before trial, after he refused to take a drug test. His failure to take the
drug test in December 2012 concerned Mother “[b]ecause if he didn’t take his
drug test, then that means he was hiding something and clearly wasn’t wanting to
be compliant and didn’t want [S.L.W.] bad enough to do what he was supposed
to do.”
Mother testified that she believed that Father was abusing drugs at the
time of trial because he refused to take a urine test. Mother testified that S.L.W.
deserves a parent who is not on drugs. Mother testified that she did not believe it
was in S.L.W.’s best interest to be in Father’s presence and that she believed
that being in his presence would endanger her physical health or emotional well-
being.
Mother had been clean almost eleven months at the time of trial and did
not intend to go back to Father. She admitted that at times she had put him
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before her children. Mother also admitted that she and Father had broken up
and gotten back together several times in the ten years that they had known
each other.
Mother was due to have her fifth child with Father in April 2013. She
believed that Father should have only supervised contact with that child.
In addition to his drug abuse, Father’s anger was also a concern at trial.
The licensed professional counselor who evaluated and counseled Mother and
Father explained how Father’s problems affect his ability to parent:
He had trouble with anger. When there’s trouble in a
relationship, those conflicts can interfere with a parent’s ability to
meet their child’s needs, [the] child could get injured during domestic
inciden[ts]. They can be emotionally affected by these verbal
conflicts that occur in relationships. There’s many ways that it will
interfere with effective parenting.
The counselor also explained how verbal and emotional abuse could affect
a child: “It can affect their moods, their self-esteem, their sense of self-worth.
They will feel insecure in the home and it can have multiple effects emotionally
and psychologically for the child.” Mother agreed that it is not healthy for a young
child to be exposed to parents who “scream and yell and cuss” at each other.
Overall, the caseworker’s chief lingering concern about Father at trial was
his continued substance abuse. She did not believe that S.L.W. would be safe if
she was returned to Father. The caseworker testified that she believed that
termination is in S.L.W.’s best interest because S.L.W. “deserves a home that is
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safe and stable, drug-free, [and] violence-free[,] and [she] d[id]n’t feel that
. . . [S.L.W.’s] biological parents [were] able to provide that for her.”
According to Mother, Father visited S.L.W. pretty regularly until January
2013, unless he had to work, but on January 8 and January 15, 2013, he missed
visits with S.L.W. even though he was in the parking lot and took Mother home
from the January 15 visit. He told Mother that he missed the visit because “he
had other things that he had to do” and that he was not sure that he would attend
trial the next day. Although he had notice of trial, which began on January 16,
2013, Father did not appear in person; he was represented by counsel.
Father’s CPS caseworker did not know where he was living at the time of
trial; she had not spoken to him for about 43 days.
The evidence at trial shows that S.L.W. had been living with Intervenors
and her foster brother since she was four days old. She called the foster mother
“Mama.” Intervenors thought of her as their daughter and expressed a wish to
adopt her. S.L.W. was very close to her foster brother, who was seven and one-
half months older than she and whom Intervenors were in the process of
adopting.
The caseworker testified that S.L.W. was meeting her milestones timely.
She had had no significant medical issues. Her foster mother testified that
S.L.W. “took her first steps at nine months old and she walked at ten months old
and she’[d] been unstoppable since then.” She spoke her first sentence at just
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over twelve months old in response to her foster mother’s question, “[C]an you
say[, ‘]I love you?’”
The caseworker testified that Intervenors had met S.L.W.’s emotional and
physical needs since she began living in their home and further opined that they
will be able to meet her future needs. The caseworker testified that the
placement had been a good one for S.L.W. and that Intervenors had provided
her with a “wonderful,” “very stable,” “very safe” home. Intervenors’ home was
child-proofed, and it had three bedrooms and two bathrooms, a fenced-in yard,
and two dogs the children are close to. The caseworker also testified that
Intervenors had a strong bond with S.L.W.
If Intervenors were to adopt S.L.W., they would be open to some level of
contact with the biological parents, “depend[ing] on the biological parents and
their current status of recovery.” Intervenors already maintained contact with
their foster son’s birth mother. Intervenors would also tell S.L.W. about her
adoption in an age-appropriate way.
Mother testified that while she wanted S.L.W. to come home to her, she
knew that even if that did not happen, S.L.W. would “be okay.” Mother testified
that she could see that Intervenors provided a good home for S.L.W. Mother felt
that S.L.W., who “d[id]n’t really call [her] anything,” “kn[ew] kind of who [Mother
was], but not really, not like it should be.” No one testified about any bond
between S.L.W. and Father.
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In closing arguments, Father supported the return of S.L.W. to Mother,
who did not appeal the termination of her parental relationship with S.L.W.
II. Endangering Conduct
In his first issue, Father challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that he engaged in conduct or
knowingly placed S.L.W. with persons who engaged in conduct which
endangered her physical or emotional well-being. He contends that “it is virtually
impossible to locate any evidence regarding any direct or indirect acts of
‘endangerment’ directed by [him] toward S.L.W.” Yet, as we have explained
many times,
Endangerment means to expose to loss or injury, to jeopardize. . . .
. . . . 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. . . . A
parent’s decision to engage in illegal drug use during the pendency
of a termination suit, when the parent is at risk of losing a child,
supports a finding that the parent engaged in conduct that
endangered the child’s physical or emotional well-being. Thus,
parental and caregiver illegal drug use supports the conclusion that
the children’s surroundings endanger their physical or emotional
well-being. . . . As a general rule, conduct that subjects a child to a
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life of uncertainty and instability endangers the child’s physical and
emotional well-being. 3
A parent’s mental state may also be relevant in deciding 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. 4 Finally, even when a
parent makes significant, positive changes in behavior before trial, “evidence of
improved conduct, especially of short-duration, does not conclusively negate the
probative value of a long history of . . . irresponsible choices.” 5
The evidence shows that Father overdosed before S.L.W.’s birth, engaged
in a conscious course of drug abuse throughout the entire case, and had
problems with anger, admitting to emotionally and verbally abusing Mother. The
evidence also shows that Mother’s two older sons had reported that he had tried
to suffocate them by encasing their heads in plastic bags. Father’s
accomplishment of completing many or even almost all steps on the court-
ordered service plan before the cancellation of the monitored return does not
diminish the importance of his testing positive for methamphetamine,
amphetamine, and marijuana several months before trial and his drug test
3
In re J.A.G., No. 02-10-00002-CV, 2010 WL 4539442, at *1 (Tex. App.—
Fort Worth Nov. 10, 2010, no pet.) (mem. op.) (citing In re J.O.A., 283 S.W.3d
336, 345–46 (Tex. 2009), and In re J.W., No. 02-08-00211-CV, 2009 WL 806865,
at *4 (Tex. App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.)).
4
In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet.
denied).
5
J.O.A., 283 S.W.3d at 346.
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refusals up to the month before trial. Consequently, applying the appropriate
standard of review and reviewing the evidence in the light most favorable to the
verdict, 6 we hold that the evidence is legally sufficient to support the trial court’s
endangerment finding. Further, applying the appropriate standard to our review
of all the evidence while giving due deference to the trial court’s findings, 7 we
hold that the evidence is factually sufficient to support the trial court’s
endangerment findings. We overrule Father’s first issue.
III. Best Interest
In his third issue, Father contends that the evidence is factually insufficient
to support the trial court’s best interest finding. While Father’s lawyer cross-
examined TDFPS’s and Intervenors’ witnesses, Father did not put on a case-in-
chief—he did not call any witnesses or offer any exhibits. In closing arguments,
Father supported the return of S.L.W. to Mother, but Mother did not appeal the
trial court’s termination of her parental rights. In addition to the evidence of
Father’s endangering conduct, which is relevant, we consider that there is no
evidence about his own plans for S.L.W., how he planned to contribute to her
care and upbringing (even if she were returned to Mother), or his bond with
S.L.W. On the other hand, the record is replete with evidence that Intervenors’
6
See In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005); In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002).
7
See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re C.H., 89 S.W.3d
17, 27–28 (Tex. 2002).
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home was appropriate and beneficial, that S.L.W. had bonded with them and her
foster brother, that she was safe and loved, and that Intervenors had an open
mind about some type of contact with the birth parents depending on the birth
parents’ state of recovery. Thus, considering the Holley factors 8 and applying the
appropriate standard to our review of all the evidence on S.L.W.’s best interest
while giving due deference to the trial court’s findings, 9 we hold that the evidence
is factually sufficient to support the best interest finding. We overrule Father’s
third issue.
IV. Conclusion
Because a best interest finding and a finding of only one ground alleged
under section 161.001(1) of the family code are sufficient to support a judgment
of termination, 10 we do not reach Father’s second issue, which challenges the
finding under subsection (O). 11 Consequently, having overruled Father’s
dispositive issues, we affirm the trial court’s judgment.
8
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
9
See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 27–28.
10
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.).
11
See Tex. R. App. P. 47.1.
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PER CURIAM
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: August 8, 2013
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