in the Interest of B.B., a Child

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-22-00051-CV

IN THE INTEREST OF B.B., A CHILD

On Appeal from the County Court at Law
Lamar County, Texas
Trial Court No. 90406

Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice van Cleef
 MEMORANDUM OPINION

The Department of Family and Protective Services filed a petition to terminate Mother’s

and Father’s parental rights after both B.B. and Mother tested positive for methamphetamine at

B.B.’s birth.1 After a bench trial, the trial court found that Mother and Father (1) knowingly

placed or allowed B.B. to remain in conditions or surroundings that endangered her physical or

emotional well-being, (2) engaged in conduct or knowingly placed B.B. with persons who

engaged in conduct that endangered her physical or emotional well-being, (3) constructively

abandoned B.B., (4) failed to comply with the provisions of a court order that specifically

established the actions necessary for B.B.’s return, and (5) used a controlled substance in a

manner that endangered B.B.’s health or safety. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),

(E), (N), (O), (P). The trial court also found that Father knowingly engaged in criminal conduct

that resulted in a conviction and confinement or imprisonment and inability to care for B.B. for

not less than two years from the date of the Department’s petition. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(Q). After determining that it was in B.B.’s best interests, the trial court

terminated Mother’s and Father’s parental rights to B.B. See TEX. FAM. CODE ANN.

§ 161.001(b)(2).

On appeal, Father2 argues that the evidence is legally and factually insufficient to support

the trial court’s findings that there were statutory grounds to terminate his parental rights.3

1
We use initials to protect the identity of the child and refer to her parents as Mother and Father. See TEX. R. APP. P.
9.8.
2
Mother did not appeal the termination of her parental rights to B.B.
3
Father does not challenge the trial court’s best-interest finding.
2
Because Father failed to challenge the trial court’s statutory Ground Q finding and sufficient

evidence supported the trial court’s finding under Ground E, we overrule Father’s point of error

and affirm the trial court’s judgment terminating his parental rights.

I. Standard of Review

“The natural right existing between parents and their children is of constitutional

dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to

make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel

v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates

fundamental interests, a higher standard of proof—clear and convincing evidence—is required at

trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to

“engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to

support the termination of parental rights.” Id. (quoting In re A.B., 437 S.W.3d at 500).

“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (quoting

In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick,

685 S.W.2d at 20)).

“In order to terminate parental rights, the trial court must find, by clear and convincing

evidence, that the parent has engaged in at least one statutory ground for termination and that

termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re

E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of

proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of

3
the allegations sought to be established.’” Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing

In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). “This standard of proof necessarily affects our

review of the evidence.” Id.

“In our legal sufficiency review, we consider all the evidence in the light most favorable

to the findings to determine whether the fact-finder reasonably could have formed a firm belief

or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920

(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)

(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We

assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a

reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have

reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re

J.P.B., 180 S.W.3d at 573).

“In our review of factual sufficiency, we give due consideration to evidence the trial

court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder

reasonably could have found to be clear and convincing and determine ‘whether the evidence is

such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the

. . . allegations.’” Id. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 108 (quoting

In re C.H., 89 S.W.3d 17, 25 (Tex. 2002))); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002).

“If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not

have credited in favor of the finding is so significant that a fact[-]finder could not reasonably

4
have formed a firm belief or conviction, then the evidence is factually insufficient.” Id. (quoting

In re J.F.C., 96 S.W.3d at 266). “‘[I]n making this determination,’ we must undertake ‘an

exacting review of the entire record with a healthy regard for the constitutional interests at

stake.’” Id. (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H., 89

S.W.3d at 26)). “We also recognize that the trial court, as the fact-finder, is the sole arbiter of a

witness’ demeanor and credibility, and it may believe all, part, or none of a witness’ testimony.”

In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at *3 (Tex. App.—Texarkana June 22,

2018, pet. denied) (mem. op.) (citing In re H.R.M., 209 S.W.3d at 109).

“Despite the profound constitutional interests at stake in a proceeding to terminate

parental rights, ‘the rights of natural parents are not absolute; protection of the child is

paramount.’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.

2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))) (citing In re M.S., 115 S.W.3d

534, 547 (Tex. 2003)). “A child’s emotional and physical interests must not be sacrificed merely

to preserve parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—

Texarkana 2015, no pet.) (citing In re C.H., 89 S.W.3d at 26)).

II. Unchallenged Ground Q Finding Supports Termination of Father’s Parental Rights

“Only one predicate finding under Section 161.001[b](1) is necessary to support a

judgment of termination when there is also a finding that termination is in the child’s best

interest.” Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet.

denied) (quoting In re A.V., 113 S.W.3d at 362) (citing In re K.W., 335 S.W.3d 767, 769 (Tex.

App.—Texarkana 2011, no pet.))).

5
 Father asserts that the evidence is legally and factually insufficient to support the trial

court’s findings under Grounds D, E, N, O, and P, but his brief wholly fails to challenge the trial

court’s Ground Q finding. When the trial court makes findings that multiple statutory grounds

support termination of parental rights and the appellant does not challenge all statutory grounds

found, we will affirm the trial court’s termination order based on the unchallenged statutory

ground if the trial court’s best-interest finding is also unchallenged. See In re A.G.-U., No. 06-

17-00078-CV, 2017 WL 5473766, at *1 (Tex. App.—Texarkana Nov. 15, 2017, no pet.) (mem.

op.) (order terminating parental rights affirmed when parent did not challenge trial court’s

findings on one statutory ground and best interest); B.H.-L v. Tex. Dep’t of Fam. & Protective

Servs., No. 03-17-00772-CV, 2018 WL 1278720, at *1–2 (Tex. App.—Austin Mar. 13, 2016, no

pet.) (mem. op.) (same).

Based on the unchallenged Ground Q and best-interest findings, we overrule Father’s

point of error and affirm the termination of Father’s parental rights to B.B.

III. We Must Still Conduct a Due Process Review of Ground D or E

Even so, when the trial court’s findings under Grounds D or E are challenged on appeal,

due process demands that we review the evidence supporting the finding under at least one of

those grounds. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (“We hold that

due process and due course of law requirements mandate that an appellate court detail its

analysis for an appeal of termination of parental rights under [S]ection 161.001(b)(1)(D) or (E)

of the Family Code.”). This is because termination of parental rights under these grounds may

implicate the parent’s parental rights to other children. Id. at 234; see TEX. FAM. CODE

6
ANN. § 161.001(b)(1)(M) (providing as a ground for termination of parental rights that the parent

“had his or her parent-child relationship terminated with respect to another child based on a

finding that the parent’s conduct was in violation of Paragraph (D) or (E)”).

A. Requirements Under Ground E

Ground E permits the termination of a parent’s parental rights “if the court finds by clear

and convincing evidence . . . that the parent has . . . engaged in conduct . . . which endangers the

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

Endanger “means more than a threat of metaphysical injury or potential ill effects of a less-than-

ideal family environment.” In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). “‘Endanger’ means

to expose to loss or injury; to jeopardize.” Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987); In re L.E.S., 471 S.W.3d at 923; In re N.S.G., 235 S.W.3d 358, 367 (Tex.

App.—Texarkana 2007, no pet.). “It is not necessary that the conduct be directed at the

child[ren] or that the child[ren] actually suffer injury.” In re L.E.S., 471 S.W.3d at 923. Under

Ground “(E), it is sufficient that the child[ren]’s well-being is jeopardized or exposed to loss or

injury.” Id. (citing Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367).

“Further, termination under [Ground] (E) must be based on more than a single act or

omission. Instead, a ‘voluntary, deliberate, and conscious course of conduct by the parent is

required.’” Id. (quoting Perez v. Tex. Dep’t of Protective & Regul. Servs., 148 S.W.3d 427, 436

(Tex. App.—El Paso 2004, no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—

Eastland 1999, no pet.))); see Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366–67.

Ground E “refers only to the parent’s conduct, as evidenced not only by the parent’s acts, but

7
also by the parent’s omissions or failures to act.” In re M.C., 482 S.W.3d 675, 685 (Tex. App.—

Texarkana 2016, pet. denied) (quoting In re N.S.G., 235 S.W.3d at 366–67). “The conduct to be

examined includes what the parent did both before and after the child was born.” Id. at 685

(quoting In re N.S.G., 235 S.W.3d at 367). “The endangering conduct may also occur ‘either

before or after the child’s removal by the Department.’” In re S.A.W., No. 06-21-00116-CV,

2022 WL 1193667, at *4 (Tex. App.—Texarkana Apr. 22, 2022, pet. denied) (mem. op.)

(quoting In re Z.J., No. 02-19-00118-CV, 2019 WL 6205252, at *11 (Tex. App.—Fort Worth

Nov. 21, 2019, pet. denied) (mem. op.) (citing Walker v. Tex. Dep’t of Fam. & Protective Servs.,

312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied))).

B. The Evidence at Trial

B.B., who was born on June 4, 2021, was one year old at the time of trial. Brittany Allen,

the Department’s caseworker, testified that Father admitted to using methamphetamine daily.

Allen testified, and admitted drug test results showed, that Father tested positive for

methamphetamine and amphetamine four days after B.B.’s birth. According to Allen, Father

was incarcerated shortly after B.B.’s birth and remained incarcerated during the pendency of the

case. Allen also testified that Father reported being in a gang that called him “Tow Chain.”

The record showed that Father, who was thirty-six, had a prior criminal history. Allen

testified that Father was convicted of sexual assault of a child. Judgments of conviction against

Father showed that he was previously convicted of two counts of failing to register as a sex

offender, as well as two counts of unauthorized use of a motor vehicle, one count of possession

of cocaine, two counts of forgery, and several misdemeanor offenses.

8
 Father’s criminal history after B.B.’s birth was also significant. Judgments of conviction

introduced by the Department showed that Father pled guilty to, and was convicted of, two

counts of possession of a penalty group 1 controlled substance and two counts of bail jumping

and failure to appear. Pursuant to a plea bargain agreement with the State, on July 15, 2021,

Father received a sentence of six years’ imprisonment for those offenses. On July 26, 2021,

Father also pled guilty to theft of property valued at $750.00 or more, but less than $2,500.00,

and was incarcerated for twelve months. Allen’s testimony, and an admitted judgment of

conviction, showed that Father was convicted of family violence assault on July 29 after he pled

guilty to the offense.

After hearing this evidence, the trial court found that Father had engaged in conduct that

endangered B.B.’s physical or emotional well-being.

C. Sufficient Evidence Supported the Ground E Finding

The evidence at trial focused on Father’s drug use and incarceration. “Drug use and its

effect on a parent’s life and his ability to parent may establish an endangering course of

conduct.” In re J.L.B., 349 S.W.3d at 848 (quoting In re N.S.G., 235 S.W.3d at 368); see In re

J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009); In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco

2008, no pet.) (“Evidence of illegal drug use or alcohol abuse by a parent is often cited as

conduct which will support an affirmative finding that the parent has engaged in a course of

conduct which has the effect of endangering the child.”). Also, “imprisonment is certainly a

factor to be considered by the trial court on the issue of endangerment” under Ground E. In re

N.S.G., 235 S.W.3d at 367 (quoting Boyd, 727 S.W.2d at 533). This is because “[a] parent’s

9
criminal history—taking into account the nature of the crimes, the duration of incarceration, and

whether a pattern of escalating, repeated convictions exists—can support a finding of

endangerment.” In re J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021).

The evidence at trial showed that, after B.B.’s birth, Father admitted that he used

methamphetamine daily. “‘Because it exposes the child to the possibility that the parent may be

impaired or imprisoned, illegal drug use may support termination under’ Ground E.” In re

H.M.J., No. 06-18-00009-CV, 2018 WL 3028980, at *5 (Tex. App.—Texarkana June 19, 2018,

no pet.) (mem. op.) (quoting In re A.L., No. 06-14-00050-CV, 2014 WL 5204888, at *7 (Tex.

App.—Texarkana Oct. 8, 2014, no pet.) (mem. op.) (quoting Walker, 312 S.W.3d at 617)). Here,

Father was convicted after B.B.’s birth for possessing controlled substances while Mother was

pregnant with B.B., including just nine days before B.B.’s birth.

“A parent’s failure to remain drug-free while under the Department’s supervision will

support a finding of endangering conduct under [Ground] (E) even if there is no direct evidence

that the parent’s drug use actually injured the child.” In re H.M.J., 2018 WL 3028980, at *5

(quoting In re J.A.W., No. 02-08-215-CV, 2009 WL 579287, at *4 (Tex. App.—Fort Worth

Mar. 5, 2009, no pet.) (per curiam) (mem. op.) (citing Vasquez v. Tex. Dep’t of Protective &

Regul. Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)). Four

days after B.B.’s birth, and one day after the Department’s petition was filed, Father tested

positive for methamphetamine and amphetamine. His admitted daily habit reasonably led the

fact-finder to conclude that he would not be responsible enough to care for B.B.

10
 An offense committed by a parent before the birth of the parent’s child “can be a relevant

factor in establishing an endangering course of conduct.” In re E.N.C., 384 S.W.3d at 804–05.

Also, conduct that demonstrates “[d]omestic violence, want of self-control, and propensity for

violence may be considered as evidence of endangerment.” In re J.A.W., No. 06-09-00068-CV,

2010 WL 1236432, at *4 (Tex. App.—Texarkana Apr. 1, 2010, pet. denied); see E.E. v. Tex.

Dep’t of Fam. & Protective Servs., 598 S.W.3d 389, 405 (Tex. App.—Austin 2020, no pet.).

The evidence showed that Father had a lengthy criminal history before B.B.’s birth, including

sexual assault of a child and, more recently, family violence assault.

In addition to committing criminal offenses before B.B.’s birth, Father committed the

offense of bail jumping after B.B.’s birth. His pleas of guilty on July 15, 26, and 29, 2021, to

several offenses committed after B.B.’s birth led to Father’s imprisonment for up to six years.

Father’s imprisonment removed his ability to parent newborn B.B. and exposed her to the loss of

a caretaker, subjecting her to a life of uncertainty and instability if Father’s parental rights were

not terminated. An examination of all of Father’s criminal offenses showed that Father engaged

in more serious crimes as time passed, received his heaviest sentence after B.B.’s birth, and

reported that he was a gang member.

Despite that evidence, Father argues that it is insufficient because he was “incarcerated

for practically all of the Child’s life.” That fact, however, weighs against Father because a fact-

finder may “infer that a parent’s lack of contact with the child and absence from the child’s life

endangers the child’s emotional well-being.” E.E., 598 S.W.3d at 405–06; In re U.P., 105

S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied), overruled in part on

11
other grounds by In re L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th Dist.] 2020, pet.

denied) (concluding that parent’s criminal conduct, which resulted in the parent’s imprisonment

and absence from child’s life, created an “emotional vacuum” in the child’s life that endangered

the child’s well-being).

A long history of irresponsible choices is probative evidence that a parent has engaged in

conduct that has endangered a child. See In re J.O.A., 283 S.W.3d at 346. From the above-

recited evidence, we find that the trial court could have formed a firm belief or conviction that

Father’s life choices, including his pattern of knowingly engaging in illegal activity, left him

unable to care for B.B. and constituted a pattern of conduct inconsistent with the very idea of

childrearing. Because the record firmly established that Father engaged in conduct that

endangered B.B.’s physical and emotional well-being, we find that legally and factually

sufficient evidence supported the trial court’s finding under Ground E.4

IV. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: October 10, 2022
Date Decided: October 19, 2022

4
Since there was sufficient evidence supporting the trial court’s finding under Grounds Q and E, we need not review
its findings under the remaining grounds. See J.T. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-21-00070-CV,
2021 WL 2672055, at *9 (Tex. App.—Austin June 30, 2021, no pet.) (mem. op.); In re M.F., No. 14-19-00964-CV,
2020 WL 2832166, at *8 (Tex. App.—Houston [14th Dist.] May 28, 2020, pet. denied) (mem. op.).
12