COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00061-CV
IN THE INTEREST OF M.C.D AND
J.N.D., CHILDREN
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Appellants C.C.C. (Mother) and M.D. (Father) appeal the trial court’s
judgment terminating their parental rights to their children, M.C.D. and J.N.D.
We will affirm.
II. BACKGROUND
Mother and Father’s relationship began in November 2008. They moved
in together a few months later. M.C.D. was born in October 2009. J.N.D. was
born in September 2010.
1
See Tex. R. App. P. 47.4.
In late April 2012, CPS received a referral involving neglectful supervision
of the children after Mother ―abandoned‖ them at an apartment from which she
had recently been evicted. CPS collected the children from the police
department but could not locate Mother. Mother contacted the police later in the
afternoon. She told CPS that she had left the children with a neighbor the
previous night so that she could ―handle some business.‖ CPS had removed the
neighbor’s children the previous week. Mother knew this. CPS had received
several other referrals involving M.C.D. and J.N.D.—Mother and Father were
uncooperative and hostile—so it decided to bring the children under its care.
Appellee Department of Family and Protective Services (DFPS) consequently
filed a petition for protection of the children, for conservatorship, and for
termination in suit affecting the parent-child relationship.
CPS set up service plans for Mother and Father. Mother did not complete
her plan, nor did Father, but he had been incarcerated since January 2012
awaiting trial on a charge of indecency with a child. In June 2012, Father
pleaded guilty and was convicted of injury to a child. He was sentenced to two
years’ confinement. Father is scheduled to be released from prison in
September 2013.
The termination bench trial took place in February 2013. Mother did not
show up, but her attorney did. Father appeared for trial and testified. The trial
court ultimately signed an order terminating Mother’s and Father’s parental rights
to the children. It found by clear and convincing evidence that termination of
2
mother’s parental rights was appropriate under family code subsections
161.001(1)(D), (E), (N), and (O) and that termination is in the children’s best
interest. See Tex. Fam. Code Ann. §§ 161.001(1)(D), (E), (N), (O), (2) (West
Supp. 2012). As to Father, the trial court found by clear and convincing evidence
that termination of his parental rights was appropriate under family code section
161.002(b)(1) and family code subsections 161.001(1)(D), (E), (L), and (O) and
that termination is in the children’s best interest. See id. §§ 161.001(1)(D), (E),
(L), (O), (2), § 161.002(b)(1) (West 2008).
III. BURDEN OF PROOF AND STANDARDS OF REVIEW
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001, § 161.206(a) (West 2008). 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 (West 2008).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We consider evidence favorable to termination if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could
not. Id.
3
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated section 161.001(1) and that termination of the parent-child
relationship would be in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001; 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.
IV. MOTHER’S APPEAL
A. Endangerment Findings
In her first and second issues, Mother argues that the evidence is legally
and factually insufficient to support the trial court’s subsections 161.001(1)(D)
and (E) endangerment findings.
Endangerment means to expose to loss or injury, to jeopardize. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). 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. Tex. Fam. Code Ann. § 161.001(1)(D). Under
4
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. In re D.T., 34 S.W.3d 625, 632 (Tex.
App.—Fort Worth 2000, pet. denied). A child is endangered when the
environment creates a potential for danger that the parent is aware of but
disregards. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009,
no pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the
child’s home or with whom the child is compelled to associate on a regular basis
in his home is a part of the ―conditions or surroundings‖ of the child’s home under
section 161.001(1)(D). Id. Conduct of a parent in the home can create an
environment that endangers the physical and emotional well-being of a child.
J.T.G., 121 S.W.3d at 125.
The trial court may order termination of the parent-child relationship if it
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 physical or emotional well-being of the child. Tex. Fam. Code Ann.
§ 161.001(1)(E). 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. J.T.G., 121 S.W.3d at 125. Termination under subsection (E) must be
based on more than a single act or omission; a voluntary, deliberate, and
5
conscious course of conduct by the parent is required. Id.; D.T., 34 S.W.3d at
634.
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. In re S.D.,
980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). 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. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 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. Id.; In re D.M., 58 S.W.3d 801, 812–13
(Tex. App.—Fort Worth 2001, no pet.). A factfinder may also infer from past
conduct endangering the well-being of the child that similar conduct will recur if
the child is returned to the parent. In re M.M., No. 02-08-00029-CV, 2008 WL
5195353, at *6 (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.). In
conducting an evidentiary sufficiency review of a factfinder’s subsections
161.001(1)(D) and (E) findings, this court has previously considered, among
other things, evidence that the children were exposed to domestic violence and
evidence that the parent did not complete a service plan. In re M.R., 243 S.W.3d
807, 818 (Tex. App.—Fort Worth 2007, no pet.).
6
Because the evidence pertaining to subsections 161.001(1)(D) and (E) is
interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,
439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126.
Brittny Braswell, the CPS investigator assigned to the children’s case,
testified that Mother had three arrests, including one in which she was arrested in
January 2012 for prostitution. Father confirmed this; he told Braswell during an
interview that he had been arrested in Louisiana for promoting prostitution and
that Mother had been arrested for prostitution.
Haylee Long, the conservatorship worker assigned to the children’s case,
testified that mother said she smoked marijuana. On two occasions during the
case, Long asked Mother to submit to a random drug test but Mother refused
because ―she knew she would test positive for marijuana.‖ DFPS had concerns
about Mother’s drug use.
Braswell explained that CPS had received several other referrals involving
the children. One of them, in February 2010, involved a situation in which the
police responded to gunshots at a home. Father and several other people had
barricaded themselves in the home. According to Braswell, Mother refused to
come out with M.C.D.
The other referral was from November 2009 and involved an allegation
that Father hit Mother in the face, threw her to the ground, and choked her in
front of M.C.D., who was four weeks old at the time. Mother sustained bruises
and cuts. Mother told Long that domestic violence occurred frequently in her
7
relationship with Father, but Mother nonetheless remained ―very protective‖ of
Father.
Braswell testified that the children were removed from Mother after she
―abandoned‖ them at an apartment. Mother said that she left the children with a
neighbor, but CPS had recently removed the neighbor’s children, and Mother
knew that. Mother contacted the police later in the day inquiring about the
children. Braswell had reason to believe that Mother did not leave the children
with a responsible adult.
Mother did not complete her service plan. Long testified that Mother failed
to complete a domestic violence course, a mental health screening, individual
counseling, parenting classes, substance abuse training, and random drug
testing. Mother attended only three visits with the children; the last one was in
May 2012, approximately nine months before the termination trial. Mother also
never informed Long that she obtained employment.
Long asked the trial court to terminate Mother’s and Father’s parental
rights because they had not shown that they could protect the children.
Accordingly, giving due deference to the trial court’s findings, we hold that
the trial court could have formed a firm belief or conviction that Mother engaged
in conduct and knowingly placed or knowingly allowed the children to remain in
conditions that endangered their physical or emotional well-being. See Tex.
Fam. Code. Ann. § 161.001(1)(D), (E). We therefore hold that the evidence is
legally and factually sufficient to support the trial court’s subsections
8
161.001(1)(D) and (E) findings. We overrule Mother’s first and second issues.
Having overruled those issues, we need not address—and therefore overrule—
her third and fourth issues challenging the legal and factual sufficiency of the
evidence to support the trial court’s subsections 161.001(1)(N) and (O) findings.
See Tex. R. App. P. 47.1; J.L., 163 S.W.3d at 84 (stating that parent must have
committed only one of the acts prohibited under family code section 161.001(1)
for termination of her parental rights).
B. Best Interest Finding
Mother argues in her fifth issue that the evidence is legally and factually
insufficient to support 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 environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008)
(listing factors that should be considered in evaluating the parent’s willingness
and ability to provide the child with a safe environment). 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
9
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, and other factors not on the list may also be
considered when appropriate. C.H., 89 S.W.3d at 27. The same evidence of
acts or omissions used to establish grounds for termination under section
161.001(1) may be probative in determining the best interest of the child. Id. at
28.
The evidence detailed above regarding Mother’s involvement with
prostitution, drugs, and domestic violence and her failure to complete her service
plan is probative to the best interest inquiry. See id. Mother also failed to inform
Long during the case that she had obtained stable housing and a job. Long last
heard that Mother was living with a friend.
C.M., the children’s great aunt, testified that she has had possession of the
children for eight months, that their behavior had improved dramatically over that
period of time, and that she and her husband plan to adopt the children if
Mother’s and Father’s parental rights are terminated.
Father claimed at one point during his testimony that Mother did not have a
history of prostitution, and Father’s mother testified that she thought Mother
10
cared about her children and loved them and that her parental rights should not
be terminated.
Considering the relevant statutory factors in evaluating Mother’s
willingness and ability to provide the children with a safe environment and the
relevant Holley factors, we hold that, in light of the entire record, and giving due
consideration to evidence that the trial court could have reasonably found to be
clear and convincing, the trial court could reasonably have formed a firm belief or
conviction that termination of Mother’s parental rights to the children is in the
children’s best interests. Accordingly, the evidence is legally and factually
sufficient to support the trial court’s section 161.001(2) best interest finding. We
overrule Mother’s fifth issue.
V. FATHER’S APPEAL
In four issues, Father challenges the legal and factual sufficiency of the
evidence to support the trial court’s subsections 161.001(1)(D), (E), and (O)
findings and the best interest finding. He does not, however, challenge the trial
court’s subsection (L) finding. When a parent does not challenge an independent
ground that may support the judgment that he seeks to reverse, this court may
not address either the challenged grounds or the unchallenged ground and has
no choice but to overrule the challenges that the parent has chosen to assert.
See In re A.V., 113 S.W.3d 355, 361–62 (Tex. 2003); Hong Kong Dev., Inc. v.
Nguyen, 229 S.W.3d 415, 456 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Accordingly, because Father does not challenge a ground upon which the trial
11
court based its termination decision, we need not address Father’s first, second,
and third issues challenging the trial court’s alternative subsection 161.001(1)
findings, and we overrule those issues.2
We have already set out the factors and standards relevant to a review of
the trial court’s best interest finding. See Holley, 544 S.W.2d at 371–72; see also
C.H., 89 S.W.3d at 27–28. The evidence demonstrates that in addition to injury
to a child, father has convictions for criminal mischief $500–$1,500, unauthorized
use of a motor vehicle, violation of a protective order, and robbery. 3 Father also
has arrests for promotion of prostitution and indecency with a child, and he has
been involved in acts of domestic violence with Mother. Father was incarcerated
at the time of trial and unable to provide the children with a stable home. See
M.R., 243 S.W.3d at 821 (reasoning that incarceration is one factor courts can
consider when determining the best interest of a child in a termination case).
Contrary to this evidence, Father testified that he did not commit the
offense for which he was incarcerated, that he had no part in Mother engaging in
prostitution, and that he has never committed domestic violence. Father
explained that he loves his children and that his parental rights should not be
terminated.
2
We also need not address the parties’ arguments regarding the trial
court’s section 161.002(b)(1) finding.
3
In the context of his injury-to-a-child conviction, Father was allowed to
plea in bar to two evading arrests.
12
As set out above, the children are thriving with a family that intends to
adopt them.
Considering the relevant statutory factors in evaluating Father’s willingness
and ability to provide the children with a safe environment and the relevant Holley
factors, we hold that, in light of the entire record, and giving due consideration to
evidence that the trial court could have reasonably found to be clear and
convincing, the trial court could reasonably have formed a firm belief or
conviction that termination of Father’s parental rights to the children is in the
children’s best interests. Accordingly, the evidence is legally and factually
sufficient to support the trial court’s section 161.001(2) best interest finding. We
overrule Father’s fourth issue.
VI. CONCLUSION
Having overruled Mother’s dispositive issues and Father’s dispositive
issues, we affirm the trial court’s order terminating the parent-child relationship
between Mother and the children and Father and the children.
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DELIVERED: July 18, 2013
13