in the Interest of J.F.-g., a Child ( 2021 )

IN THE SUPREME COURT OF TEXAS
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NO. 20-0378
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IN THE INTEREST OF J.F.-G., A CHILD
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS
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Argued February 24, 2021
JUSTICE BLAND delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE
LEHRMANN, JUSTICE BOYD, and JUSTICE HUDDLE joined.
JUSTICE BLACKLOCK filed a dissenting opinion, in which JUSTICE GUZMAN, JUSTICE
DEVINE, and JUSTICE BUSBY joined.
When Julie 1 was born, her father was a fugitive, having failed to report to prison to serve
a four-year sentence for selling drugs. He previously had been convicted of other drug offenses.
He reported to prison while Julie was an infant to serve his sentence. After eighteen months, he
was released on parole. He then “almost immediately” committed robbery and was incarcerated
for another seven-and-a-half years. Julie’s father made almost no contact with Julie during his
incarceration. He admittedly was unaware of concerning behavior by Julie’s mother and the
mother’s boyfriend that put Julie at risk and eventually resulted in Julie’s removal from the home.
1
We refer to the child using the court of appeals’ pseudonym. See TEX. R. APP. P. 9.8(b).
Julie’s father emerged from prison when Julie was a pre-teen, happily situated with her
foster family and her half-sisters. And although Julie’s father took strides to reintegrate into the
community and Julie’s life, the trial court shortly thereafter terminated his parental rights. The
court found that Julie’s father had “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.” 2 It
further found that termination of her father’s parental rights was in Julie’s best interest. 3
The court of appeals affirmed, holding that sufficient evidence supports the trial court’s
decision. 4 Julie’s father petitioned this Court for review, contending that his incarceration, standing
alone, is not legally sufficient evidence of endangering conduct. Because the evidence supports
the trial court’s finding that Julie’s father engaged in conduct that endangered her physical or
emotional well-being, we affirm.
I
A
Julie’s father has spent much of his adult life in prison as a result of his escalating criminal
activity. At seventeen, he was convicted of possession of marijuana, a minor drug offense. In June
2009, he was convicted of possession of a controlled substance—either hydrocodone or cocaine—
and placed on probation for five years. Four months later, he was convicted of selling marijuana
and sentenced to four years in prison. Rather than reporting to prison as required, Julie’s father
2
See TEX. FAM. CODE § 161.001(b)(1)(E).
3
See id. § 161.001(b)(2).
4
612 S.W.3d 373, 383–84, 387 (Tex. App.—Waco 2020).
2
absconded, and he incurred a fugitive charge. After Julie’s birth in March 2010, he turned himself
in and served eighteen months. Upon his release from prison, her father “almost immediately”
committed robbery and was jailed pending trial. He was convicted and sentenced to another eight
years in prison. 5 Julie was just shy of two years old when her father returned to prison.
During her father’s prolonged absences, Julie grew up with her mother, her mother’s
boyfriend (whom Julie calls “dad”), and their two children, Julie’s younger half-sisters. Over the
years, the Department of Family and Protective Services investigated multiple reports of neglect.
The Department ruled out some of these reports, but there was “reason to believe” several incidents
of neglectful supervision. During this time, Julie’s mother’s boyfriend was on parole for drug
distribution. Julie’s father was unaware of the Department’s concerns and investigations; during
his incarceration, he communicated with Julie’s mother only about three or four times a year.
Late one night in May 2017, Julie’s “dad” (Julie’s mother’s boyfriend) drove Julie and his
older son to buy food. Intoxicated and on drugs, he crashed his car, killing his son. Julie sustained
severe facial injuries caused by sliding on gravel. A trial court sentenced Julie’s “dad” to twenty
years in prison on one count of intoxication manslaughter, to be served concurrently with ten-year
sentences for two counts of intoxication assault.
During the Department’s investigation following Julie’s injuries, a hair follicle test
confirmed that Julie’s mother had been using cocaine. The Department quickly filed this suit to
remove Julie and her half-sisters from the home, and the trial court granted temporary orders
placing the children in foster care. The Department notified Julie’s father (in prison) that Julie had
5
Julie’s father was released on parole but served over seven years of his sentence.
3
been removed from her mother’s care. Julie’s father first learned of the circumstances surrounding
the car accident when he was served with this suit.
About a year later, in May 2018, with the Department’s agreement, the trial court permitted
the Department to return Julie and her half-sisters to their mother on a monitored basis. The
Department remained the children’s temporary managing conservator. As part of the monitored
return, the trial court ordered that Julie’s mother’s boyfriend, who was out on bond, be limited to
twice-monthly supervised visitation in a public place. The trial court also ordered that he “not
transport any of the children.” When an investigator witnessed the boyfriend put the children in a
car and get into the driver’s seat, the trial court returned the children to their foster family, where
they have remained since October 2018.
Meanwhile, still incarcerated, Julie’s father appeared and answered the Department’s suit
in November 2017. Permanency reports to the trial court through November 2018 indicate that he
had not engaged in services through the Department but had been in contact by letter. In February
2019, Julie’s father moved to continue the final hearing, stating that he had “attended some classes
while in prison” and anticipated that he would soon be released on parole. He was released on
parole at the end of March 2019. The trial court granted the motion for continuance and set a new
dismissal date.
Upon his release, Julie’s father found employment. His mother offered him her residence
in Tyler as a place to live. He also reconnected with Julie’s mother, and she moved in with him at
his mother’s house. Julie’s father planned for Julie and her half-sisters to live with them. In the six
4
months between his release from prison and the final hearing, Julie’s father tested negative for
drugs and attended twice-monthly visitation with the children.
At the time of the final hearing, Julie’s foster family had cared for her for over two years
and wished to adopt Julie and her half-sisters.
B
At the final hearing, held in September 2019, the trial court heard testimony from Julie’s
mother and father, a Department caseworker, and a Department investigator. In addition, the trial
court “at the request of [Julie’s father], conferred with [Julie] with her attorney ad litem present.” 6
The mother’s boyfriend, who is the father of Julie’s two half-sisters, was incarcerated by that time
and did not testify. The trial court admitted a psychological evaluation of Julie’s mother as an
exhibit. 7
The caseworker recounted the events that took place after Julie’s injuries in the car
accident. She explained that Julie’s mother allowed her boyfriend around the children, and one of
the children indicated that the boyfriend drove them home from school, which disrupted the
attempt at a monitored return in the summer of 2018. Later, the mother had “a few positive drug
tests” for cocaine, namely a hair follicle test in November 2018 and a nail test in January 2019.
The mother’s boyfriend also had tested positive for cocaine.
6
Although the trial court noted the conference in its letter ruling to the parties, there is no reporter’s record
of it.
7
In that report, the mother “negated the relevance” of the Department’s history of referrals based on reports
of drug use and sales in the house and neglectful supervision, stating that her aunt who made the reports “lied on me
a lot.”
5
The caseworker reported that Julie was “doing great” in her foster placement.
On cross-examination, the caseworker acknowledged that Julie’s mother and father had
attended two or three therapy sessions, which had “been positive,” including one immediately
before the hearing. Between May 2019 and the final hearing in September 2019, Julie’s father had
visited with Julie twice a month at the Department’s offices. The home that Julie’s father lived in
was suitable.
The investigator also described the events leading to the disruption of the trial court’s
monitored return in August and September of 2018. After several failed attempts to contact Julie’s
mother, the investigator went to speak with Julie and her half-sister at school. They reported that
their mother’s boyfriend had dinner at their house on a Sunday and took them to school the next
morning. The investigator also witnessed the boyfriend placing the children into a car and getting
into the driver’s seat with the mother in the passenger seat. The caseworker stated that, although
Julie’s mother initially denied it, she eventually “broke down and confessed to [the Department]
that he had been around the children.”
Julie’s mother testified as well. She explained that she began a relationship with her
boyfriend right after Julie’s father was arrested for robbery and went to prison. She raised Julie
from birth to age seven until the Department placed Julie and her half-sisters in foster care after
the accident. Contrary to the caseworker’s and investigator’s accounts, she denied allowing her
boyfriend around the children during the monitored return. She contested the results of her failed
drug tests, stating that they were “not accurate.” She admitted, however, that she knew that her
boyfriend had “a cocaine issue” as early as 2016, before the car crash in 2017. She understood that
6
he ultimately tested positive for cocaine at the time of the car accident and tested positive for
cocaine after the Department removed the children from her care.
Julie’s mother immediately reunited with Julie’s father upon his release from prison in
March 2019. She testified that he sent the children birthday cards and wrote letters to them. She
stated that she had completed the services that the trial court ordered and that her children desired
to live with her and were “very well bonded” with her.
In his testimony, Julie’s father admitted to his past crimes. He had contact with Julie’s
mother only three or four times a year and had not seen Julie from the time she was four years old
until his release from prison six months before the final hearing. But he recounted steps he was
taking to change his earlier conduct. He left gang membership while in prison and took cognitive
intervention, anger management, and job training classes. He also completed twenty-nine hours of
parenting classes after he became aware of this suit. Upon his release on parole, he engaged in
services, was drug-free, and visited with a counselor two or three times.
He conceded that he was unaware of Julie’s mother’s drug use—or her boyfriend’s drug
use and criminal history—before the Department’s suit. When he became aware, he believed
Julie’s mother’s statement that the drug-test results were all false positives. He conceded that he
had caused instability for Julie by being “in and out of prison” nearly all of Julie’s life.
Despite the father’s commendable post-release behavior, the trial court found “by clear and
convincing evidence that the state ha[d] met the burden of proof to terminate [the father’s] parental
7
rights to his child on the E ground, and that terminating his parental rights is in the best interest of
his child.” 8
The court of appeals affirmed. 9 The court held that legally and factually sufficient evidence
supports the trial court’s finding that the father had “engaged in conduct” that endangered Julie’s
physical or emotional well-being and also had “knowingly placed the child with persons” who had
engaged in such conduct. 10
In this Court, Julie’s father argues that the evidence is legally insufficient to show that he
committed any endangering conduct, urging that incarceration alone cannot support an
endangerment finding under subsection (E). 11 He further argues that no evidence supports the trial
court’s finding that he “knowingly placed” Julie with others who engaged in endangering conduct.
The Department responds that Julie’s father’s criminal acts and drug use, resulting in his lengthy
periods of incarceration and absence from her life for more than eight years, constitute conduct
that endangered Julie’s physical or emotional well-being. 12
8
See TEX. FAM. CODE § 161.001(b)(1)(E).
9
612 S.W.3d at 380.
10
Id. at 382–84, 387 (quoting TEX. FAM. CODE § 161.001(b)(1)(E)). In a footnote, Chief Justice Gray
dissented, contending that the majority had improperly attributed the mother’s conduct to the father. Id. at 379.
11
In the alternative, Julie’s father argues that the court of appeals erred in its factual-sufficiency analysis.
However, “[w]e do not have jurisdiction to conduct a factual sufficiency review.” In re H.R.M., 209 S.W.3d 105, 110
(Tex. 2006) (per curiam) (citing TEX. CONST. art. V, § 6). And although we can “ensure that the courts of appeals
adhere to the proper legal standard of review,” In re C.H., 89 S.W.3d 17, 28 (Tex. 2002), the father did not brief any
argument that the court of appeals applied the wrong standard. We nonetheless conclude that the court of appeals
applied the proper standard for a factual-sufficiency review, accurately citing our precedent and detailing the evidence
supporting and opposing the trial court’s findings. We therefore confine our review to the father’s legal-sufficiency
argument.
12
The Department alternatively responds that legally sufficient evidence supports the trial court’s finding
that Julie’s father “knowingly placed” her with others who endangered her physical and emotional well-being. Because
8
II
A
The United States Constitution and the Texas Constitution protect parents’ rights to raise
and nurture their children. 13 For the State to deny these rights to a parent, it must establish by clear
and convincing evidence a legal ground to terminate the parent’s right and that termination is in
the child’s best interest. 14
This “high evidentiary burden” requires a “heightened standard of review” on appeal. 15 It
does not dispel, however, the deference that an appellate court must grant to the factfinder, who
heard the witnesses and evaluated their credibility. As we have explained, our legal-sufficiency
review “take[s] into consideration whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction about the truth of the matter on which the State bears the burden
of proof.” 16 Because the factfinder “is the sole arbiter of the witnesses’ credibility and
demeanor,” 17 appellate review must defer to the trial court’s factual determinations, even in
parental termination cases. 18 We “assume that the factfinder resolved disputed facts in favor of its
we hold that the evidence is legally sufficient to support the trial court’s finding that the father’s own conduct was
endangering to Julie, we need not address the Department’s alternative argument.
13
In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam) (“The United States Constitution and Texas
Constitution provide parents due process rights as to the care, custody, and control of their children.”).
14
In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). “‘Clear and convincing evidence’ means 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 § 101.007.
15
N.G., 577 S.W.3d at 235.
16
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
17
In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
18
J.F.C., 96 S.W.3d at 266.
9
finding if a reasonable factfinder could do so,” and we “disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.” 19 Our legal-sufficiency
standard in parental termination cases “honor[s] not only the elevated burden of proof, but also the
deference an appellate court must have for the factfinder’s role.” 20
B
Section 161.001 of the Texas Family Code requires two findings to support termination of
a parent’s legal rights: (1) the parent’s acts or omissions must satisfy an enumerated statutory
ground for termination; and (2) termination must be in the child’s best interest. 21 In total, section
161.001 lists twenty-one grounds for termination. 22 A trial court may conclude that a parent’s
conduct satisfies multiple grounds, but one predicate finding—coupled with a finding that
termination is in the child’s best interest—is enough to uphold the judgment on review. 23
In this case, the trial court found the statutory ground for termination under subsection
161.001(b)(1)(E). It permits a trial court to terminate parental rights if it finds that the parent has:
(E) 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[.] 24
19
Id.
20
In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
21
TEX. FAM. CODE § 161.001(b). “The second termination prong—best interests—is child-centered and
focuses on the child’s well-being, safety, and development.” A.C., 560 S.W.3d at 631.
22
TEX. FAM. CODE § 161.001(b)(1).
23
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“Only one predicate finding under [the statute] is necessary
to support a judgment of termination when there is also a finding that termination is in the child’s best interest.”).
24
TEX. FAM. CODE § 161.001(b)(1)(E).
10
Endangering conduct under subsection (E) need not “be directed at the child.” 25 Nor must
the child “actually suffer[] injury.” 26 “Rather, ‘endanger’ means to expose to loss or injury; to
jeopardize.” 27 In Texas Department of Human Services v. Boyd, we acknowledged that “Texas
cases have considered the involuntary termination of the rights of an imprisoned parent, and have
held that mere imprisonment will not, standing alone, constitute engaging in conduct which
endangers the emotional or physical well-being of a child,” but we nevertheless held that
incarceration does support an endangerment finding “if the evidence, including the imprisonment,
shows a course of conduct which has the effect of endangering the physical or emotional well-
being of the child.” 28 A parent’s 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. 29 Imprisonment thus “is certainly a factor” the trial court
may weigh when considering endangerment. 30
The text of subsection (E) has remained constant since the enactment of the Family Code
in 1973, even as the Legislature has reworked other existing grounds and added new ones through
25
Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
26
Id.27
Id. (citing Endanger, WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF THE ENGLISH LANGUAGE
599 (1976)).
28
Id. at 533–34.
29
See In re J.O.A., 283 S.W.3d 336, 345–46 (Tex. 2009).
30
Boyd, 727 S.W.2d at 533.
11
multiple revisions. 31 Among other things, the Legislature added that a court may terminate parental
rights if it finds that the parent has: “been convicted or has been placed on community
supervision . . . for being criminally responsible for the death or serious injury of a child”; “used a
controlled substance . . . in a manner that endangered the health or safety of the child”; or
“knowingly engaged in criminal conduct” resulting in “imprisonment and inability to care for the
child for not less than two years from the date of filing the petition.” 32
Newer subsections of the statute identify particular circumstances in which a crime or
imprisonment, standing alone, supports termination. 33 When it added these grounds, however, the
Legislature did not circumscribe subsection (E) or exclude incarceration from conduct that might
31
Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, sec. 15.02, 1973 Tex. Gen. Laws 1411, 1427 (providing
for termination 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”).
32
TEX. FAM. CODE § 161.001(b)(1)(L), (P), (Q). The Department did not plead these subsections as grounds
for termination in this case.
33
Four grounds added after subsection (E) address criminal activity. Id. § 161.001(b)(1)(L), (Q), (T), (U).
The Legislature added subsection (L) in 1989. Act of May 23, 1989, 71st Leg., R.S., ch. 808, § 1, sec. 15.02, 1989
Tex. Gen. Laws 3673, 3674. Subsection (L) allows for termination where a parent has “been convicted or has been
placed on community supervision, including deferred adjudication community supervision, for being criminally
responsible for the death or serious injury of a child.” TEX. FAM. CODE § 161.001(b)(1)(L). The Legislature added
subsection (Q) in 1997. Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001, 1997 Tex. Gen. Laws 2012,
2015. Subsection (Q) provides for termination where the parent “knowingly engaged in criminal conduct that has
resulted in the parent’s: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for
the child for not less than two years from the date of filing the petition[.]” TEX. FAM. CODE § 161.001(b)(1)(Q). The
Legislature added subsection (T) in 2005. Act of May 24, 2005, 79th Leg., R.S., ch. 508, § 2, sec. 161.001, 2005
Tex. Gen. Laws 1395, 1397. Subsection (T) allows for termination where the parent has “been convicted of: (i) the
murder of the other parent of the child . . . ; (ii) criminal attempt under Section 15.01, Penal Code . . . ; (iii) criminal
solicitation under Section 15.03, Penal Code . . . ; or (iv) the sexual assault of the other parent of the child.” TEX.
FAM. CODE § 161.001(b)(1)(T). Finally, the Legislature added subsection (U) in 2017. Act of May 8, 2017, 85th
Leg., R.S., ch. 40, § 2, sec. 161.001, 2017 Tex. Gen. Laws 99, 101–02. Subsection (U) provides for termination
where the parent has “been placed on community supervision, including deferred adjudication community
supervision . . . for being criminally responsible for the sexual assault of the other parent of the child.” TEX. FAM.
CODE § 161.001(b)(1)(U).
12
endanger a child’s physical or emotional well-being. 34 Lengthy incarceration presents a risk of
endangerment to the child’s well-being—such a significant risk, in fact, that the Legislature
provides for the pre-emptive termination of parental rights, even before the risk associated with
incarceration manifests itself.
The more recently added grounds for termination thus do not exclusively define the
circumstances in which a parent’s crimes or incarceration can support termination, as the dissent
posits. To the contrary, in the years since our holding in Boyd that imprisonment may be some
evidence of endangerment, the Legislature has expanded the grounds for termination, not curtailed
them. 35 The Legislature also did not amend the endangerment provision to provide that courts must
not consider evidence of crimes and imprisonment under subsection (E). We expressly have held
that a conviction can be “a relevant factor in establishing an endangering course of conduct” under
subsection (E). 36 In the dissent’s view, a trial court must ignore evidence of criminal conduct and
incarceration, however long and damaging the parent’s absence is to a child’s physical or
emotional well-being, for purposes of subsection (E). Such a conclusion is contrary to the text of
subsection (E), which does not say that termination may be based on endangering conduct except
when such conduct leads to incarceration.
34
“The history of [the statute] and its statutory predecessors confirms” our interpretation. Pruski v. Garcia,
594 S.W.3d 322, 328 (Tex. 2020); see id. at 328 n.2 (“[T]his is the history of the legislation, not legislative history.”
(alteration in original) (quoting Ojo v. Farmers Grp., Inc., 356 S.W.3d 421, 445 n.31 (Tex. 2011) (Willett, J.,
concurring in part))); see also Waak v. Rodriguez, 603 S.W.3d 103, 105–06 (Tex. 2020) (interpreting a statute by
“examin[ing] its history”).
35
See Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987) (holding that “if the evidence,
including the imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional
well-being of the child, a finding under [(E)] is supportable”).
36
In re E.N.C., 384 S.W.3d 796, 804–05 (Tex. 2012).
13
The grounds for termination are not mutually exclusive; rather, the same conduct may
support multiple grounds and a finding that termination of a parent’s rights is in the child’s best
interest. 37 We agree that subsection (E) should not be read so capaciously as to “render the
legislature’s painstaking enumeration of other predicate acts superfluous.” 38 But under subsections
(L), (Q), (T), and (U) a single criminal conviction may result in termination. 39 These grounds allow
the Department to act swiftly to protect children without specific evidence of long-term
abandonment. 40 In such cases, the State may “act in anticipation of a parent’s abandonment of the
child” due to incarceration, not in response to it. 41 “Thus, if the parent is convicted and sentenced
to serve at least two years and will be unable to provide for his or her child during that time, the
State may use subsection Q to ensure that the child will not be neglected.” 42
The same is not true for subsection (E). As we have emphasized, under that provision, the
mere fact of a conviction will not support termination. Nor does a crime become conclusive
evidence of “endangering” conduct because it results in incarceration. But such evidence—which
37
See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (“While it is true that proof of acts or omissions under section
[161.001(b)(1)] does not relieve the petitioner from proving the best interest of the child, the same evidence may be
probative of both issues.”).
Post at 4. In some cases, community supervision without incarceration is enough. See TEX. FAM. CODE
38
§ 161.001(b)(1)(L), (U).
39
TEX. FAM. CODE § 161.001(b)(1)(L), (Q), (T), (U).
40
See In re H.R.M., 209 S.W.3d 105, 109–10 (Tex. 2006) (per curiam) (reversing court of appeals for failing
to give due deference to the jury’s fact findings supporting termination based on (Q) where the father introduced some
evidence related to a potential parole but had multiple years remaining on his sentence, had twice been denied parole,
and had not provided financial or emotional support or arranged care for the child in his absence).
41
In re A.V., 113 S.W.3d 355, 360 (Tex. 2003).
42
Id. Although the Department did not plead for termination based on ground (Q), we note that the father
was incarcerated for over two years.
14
in this case includes multiple criminal episodes of escalating seriousness—together with the
duration and consequences of the incarceration, is relevant when the resulting abandonment
presents a risk, as it did here, to a child’s physical or emotional well-being.
III
Julie’s father committed increasingly serious crimes—among them, possession of a
controlled substance, sale of marijuana, and robbery. The trial court could fairly consider these
convictions—and their corresponding periods of imprisonment—under subsection (E). Her
father’s criminal record shows a pattern of escalating conduct, not an isolated incident. He did not
stop engaging in criminal activity after Julie was born, when he would (or should) have been aware
that criminal conduct, like committing robbery, risked separating him from Julie for years, as, in
fact, it did. Her father’s sale of illegal drugs qualifies as endangering conduct for similar reasons. 43
Particularly significant is the duration of his imprisonment, which totaled more than eight years.
Julie recently turned eleven. Before his release from prison six months before the final hearing,
Julie had last seen her father when she was four years old.
There is sparse evidence that Julie’s father supported Julie’s physical or emotional well-
being. His omissions, spanning throughout her childhood, exposed Julie to physical and emotional
loss, as he did not care for, nurture, or protect her. In her father’s absence, Julie’s mother’s
boyfriend injured her. Julie’s father testified that he did not know the details of Julie’s living
43
See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“We have previously said that endangering conduct is
not limited to actions directed towards the child. It necessarily follows that the endangering conduct may include the
parent’s actions before the child’s birth, while the parent had custody of older children, including evidence of drug
usage.” (citation omitted)).
15
situation—and that she was at risk—until the Department initiated these proceedings. He argues
that this lack of knowledge precludes any finding that he “knowingly placed” Julie with others
who endangered her. But his lack of knowledge resulted from criminal conduct that led to his
incarceration and his indifference to his daughter while he was incarcerated. The trial court could
have viewed this testimony as evidence of his own omissions in caring for Julie’s well-being.
We are required to view the facts in a light favorable to the findings of the trial judge, who
heard the testimony, evaluated its credibility, and visited with Julie herself. In crediting the father’s
testimony about his contact with Julie—which even at face value was very limited—when there
are reasons to disbelieve it, the dissent disregards our standard of review. We cannot substitute our
judgment for the factfinder’s.
Julie’s father relies on our decision in In re E.N.C., in which we rejected the notion that
“[a]ny offense committed by a citizen that could lead to imprisonment or confinement . . .
establish[es] endangerment, simply because the parent’s ability to be present in his children’s lives
would be uncertain.” 44 In that case, authorities had deported the father. In concluding that the
evidence did not support termination, however, we noted that the father had never “abandoned his
parental responsibilities.” 45 Instead, the “undisputed evidence” showed that the parents in that case
“lived together as a family unit without apparent incident until they separated, and [the father] and
his family remained a regular presence and source of support in the children’s lives after he was
44
384 S.W.3d 796, 805 (Tex. 2012).
45
Id.16
deported.” 46 We noted the “important differences” between incarceration and deportation: “Unlike
an incarcerated individual, a person who is deported is able to work, have a home, and support a
family. More importantly, it is possible for the person’s children to live with him.” 47 In contrast to
E.N.C., the record in this case supports the trial court’s implied finding that Julie’s father was not
a presence or source of support in her life.
The dissent suggests that “criminal history,” “imprisonment,” and “normal disruptions in
family life caused by imprisonment” are not enough to constitute a finding of endangerment. 48 The
“disruption” in this case was not “normal”—Julie’s life was placed at risk while her father was
completely absent from her life for more than eight years. Julie’s mother admitted that she had
contact with the father only three or four times a year. Leaving aside incarceration, an absence of
that duration resulting from criminal conduct is sufficient evidence to establish a “pattern of
conduct that is inimical to the very idea of child-rearing” that endangered Julie’s physical or
emotional well-being. 49 The trial court, as the factfinder, could reasonably conclude that such a
disruption is qualitatively different from a single, short-term incarceration.
This is not to say that “mere imprisonment”—past or present—conclusively constitutes
endangerment under subsection (E). 50 Not all incarceration means that a parent will be absent from
46
Id. at 805–06.
47
Id. at 806.
48
Post at 3 (quoting Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
49
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
50
Id.17
a child’s life for a lengthy duration. In Julie’s father’s case, however, his absence from Julie’s life
for a lengthy duration was not uncertain; it was a reality.
Julie’s father further argues that his engagement in services and his unimpeachable conduct
during the six months before the final hearing conclusively negates the trial court’s endangerment
finding. We have emphasized, however, that a parent’s short-term, positive, post-incarceration
behavior does not nullify earlier endangering conduct such that the trier of fact must set the earlier
conduct aside. As we observed in In re J.O.A.: “While the recent improvements made by [the
father] are significant, evidence of improved conduct, especially of short-duration, does not
conclusively negate the probative value of a long history of drug use and irresponsible choices.” 51
In that case, we criticized the court of appeals’ legal-sufficiency review for “attributing greater
weight to [the parent’s] recent improvements and less to his past challenges.” 52 We did “not
question the court’s logic” but “reject[ed] its use . . . as part of the legal sufficiency review.” 53 To
employ such logic in this case would elevate our assessment of Julie’s father’s testimony over the
trial court’s assessment, in disregard of the appellate standard of review. That standard requires us
51
283 S.W.3d 336, 346 (Tex. 2009). In J.O.A., the father admitted to marijuana use before the children were
born. Id. After the children’s birth, he was incarcerated on domestic violence charges. Id. Upon his release, however,
he “obtained steady employment, improved housing, and reliable transportation for his children.” Id. He “attended
parenting classes, exercised regular visitation, and passed three successive drug tests.” Id. Still, he tested positive for
marijuana shortly before the final hearing and remained delinquent in his child support. Id. Despite the strong evidence
of his improvement, we concluded that legally sufficient evidence supported termination. Id. Similarly, in In re C.H.,
we described aspects of the Father’s conduct that not only supported the trial court’s predicate finding of (E) but also
supported its best-interest determination. 89 S.W.3d at 28–29 (holding that the court of appeals applied an incorrect
factual-sufficiency standard and improperly disregarded evidence supporting the finding that termination would be in
the child’s best interest). We noted that the father, who was incarcerated at the time of trial, had not provided
“emotional or financial assistance” to the child after his birth, had an “extensive criminal history,” which continued
after the child’s birth, and had “no concrete plan to provide emotional or physical care” for the child. Id. at 20–21, 28.
52
J.O.A., 283 S.W.3d at 346.
53
Id.
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to defer to the trial court’s judgment of the credibility of the witnesses in a bench trial, even in
parental termination cases. 54
Although “parental rights are of constitutional magnitude, they are not absolute.” 55 It is
imperative that courts recognize the constitutional underpinnings of the parent–child relationship,
but courts must not sacrifice a child’s emotional and physical well-being to preserve those rights
when their corresponding obligations go unfulfilled for years. 56 We decline the invitation to draw
a bright-line rule that incarceration cannot support an endangerment finding under subsection (E).
It is enough to properly apply our existing precedent and accord the trial court’s findings the
deference they are due. Not every course of criminal conduct will result in the tragic consequences
of this case, where Julie and her father were separated for nearly all of her childhood.
* * *
Although her father’s strides toward overcoming his past conduct are important in
evaluating Julie’s best interests, his rehabilitation does not negate his past criminal conduct and
incarceration such that a trial court could not consider them to have been endangering to Julie.
Based on the evidence before it, the trial court reasonably could have formed the firm belief that
Julie’s father engaged in endangering conduct under subsection (E). We note, specifically: his
absence from her childhood for more than eight years; his history of dealing drugs; his choice not
54
See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam).
55
C.H., 89 S.W.3d at 26.
56
Id.; In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (“[T]his Court has stated that ‘the rights of natural parents
are not absolute; protection of the child is paramount. . . . The rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.’” (second alteration in original) (quoting In re J.W.T., 872 S.W.2d 189, 195
(Tex. 1994))).
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to monitor her safety during his incarceration; and his minimal effort to contact Julie or be part of
decisions regarding her health, education, or well-being. Julie’s father does not contest that
termination of his parental rights is in Julie’s best interest.
Accordingly, we affirm the judgment of the court of appeals.
________________________________
Jane N. Bland
Justice
OPINION DELIVERED: May 21, 2021
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