in the Interest of L.B., L.B., N.B., and A.B., Children ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00279-CV
IN THE INTEREST OF L.B., L.B., N.B., AND A.B.,
CHILDREN
From the 74th District Court
McLennan County, Texas
Trial Court No. 2016-920-3
MEMORANDUM OPINION
The trial court terminated the parental rights of D.B., the father of L.B., La’D.B.,1
N.B., and A.B., after a bench trial.2 The trial court found that D.B. had violated Family
Code subsections 161.001(b)(1)(D), (E), (N), and (O) and that termination was in the
children’s best interest. In eight issues, D.B. challenges the legal and factual sufficiency
of the evidence to support the trial court’s findings that he violated each of the predicate
1
We refer to the second child as La’D.B. to eliminate confusion.
2
The parental rights of the mother of the children (“Mother”) were also terminated, but she has not
appealed.
violations. D.B. does not challenge the trial court’s finding that termination was in the
best interest of the children. We will affirm.
In a proceeding to terminate the parent-child relationship brought under Family
Code section 161.001, the Department of Family and Protective Services must establish
by clear and convincing evidence two elements: (1) one or more acts or omissions
enumerated under subsection (b)(1) of section 161.001, termed a predicate violation; and
(2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. §
161.001(b)(1), (2) (West Supp. 2017); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco
2002, pet. denied). The factfinder must find that both elements are established by clear
and convincing evidence, and proof of one element does not relieve the petitioner of the
burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72
S.W.3d at 766. “Clear and convincing evidence” is defined as “that measure or degree of
proof which 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.” In re G.M., 596 S.W.2d 846, 847 (Tex.
1980).
Both legal and factual sufficiency reviews in termination cases must take 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 petitioner bears the burden
of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency
review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).
In re L.B. Page 2
In a legal sufficiency review, a court should look at all the evidence in the
light most favorable to the finding to determine whether a reasonable trier
of fact could have formed a firm belief or conviction that its finding was
true. To give appropriate deference to the factfinder’s conclusions and the
role of a court conducting a legal sufficiency review, looking at the evidence
in the light most favorable to the judgment means that a reviewing court
must assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so. A corollary to this
requirement is that a court should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.
J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, a court of appeals must give due consideration to
evidence that the factfinder could reasonably have found to be clear and convincing. Id.
[T]he inquiry must be “whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s
allegations.” A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually
insufficient.
Id. (footnotes and citations omitted); see C.H., 89 S.W.2d at 25.
We give due deference to the factfinder’s findings and must not substitute our
judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The
factfinder is the sole judge “of the credibility of the witnesses and the weight to give their
testimony.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied). The factfinder may choose to believe one witness and disbelieve another.
City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). The factfinder is free to believe or
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disbelieve the testimony of any witness, and it may accept or reject all or part of a
witness’s testimony. In re C.E.S., 400 S.W.3d 187, 195 (Tex. App.—El Paso 2013, no pet.).
If multiple predicate violations under subsection 161.001(b)(1) were found in the
trial court, we can affirm based on any one ground because only one predicate violation
under subsection 161.001(b)(1) is necessary to a termination judgment. In re T.N.F., 205
S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied), overruled in part on other grounds by
In re A.M., 385 S.W.3d 74, 79 (Tex. App.—Waco 2012, pet. denied).
Termination under subsection 161.001(b)(1)(D) requires clear and convincing
evidence that the parent has “knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or emotional well-being of
the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Termination under subsection
161.001(b)(1)(E) requires clear and convincing evidence that 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.” Id. § 161.001(b)(1)(E).
Because the evidence relevant to sections 161.001(b)(1)(D) and (E) is interrelated, we
address those grounds together. See In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied).
Both subsections require proof of endangerment, which means to expose to loss or
injury, to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987);
see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). While “endanger” means “more than
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a threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment, it is not necessary that the conduct be directed at the child or that the child
actually suffers injury.” Boyd, 727 S.W.2d at 533. Further, the danger to a child may be
inferred from parental misconduct. Id.
When the termination is based on (D), the endangerment analysis
focuses on the evidence of the child’s physical environment, although the
environment produced by the conduct of the parents bears on the
determination of whether the child’s surroundings threaten his well-being.
In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no
pet.). Section D permits termination if the petitioner proves parental
conduct caused a child to be placed or remain in an endangering
environment. In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997,
pet. denied).
It is not necessary that the parent’s conduct be directed towards the
child or that the child actually be injured; rather, a child is endangered
when the environment creates a potential for danger which the parent is
aware of but disregards. In re S.M.L., 171 S.W.3d at 477. Conduct that
demonstrates awareness of an endangering environment is sufficient to
show endangerment. Id. (citing In re Tidwell, 35 S.W.3d 115, 119-20 (Tex.
App.—Texarkana 2000, no pet.) (“[I]t is not necessary for [the mother] to
have had certain knowledge that one of the [sexual molestation] offenses
actually occurred; it is sufficient that she was aware of the potential for
danger to the children and disregarded that risk by . . . leaving the children
in that environment.”)). In considering whether to terminate parental
rights, the court may look at parental conduct both before and after the birth
of the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st
Dist.] 1997, no pet.). Section D permits termination based upon only a
single act or omission. In re R.D., 955 S.W.2d at 367.
Jordan, 325 S.W.3d at 721.
When termination is based upon (E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s well-being was the direct result of the parent’s
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or another’s conduct, including acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d
215, 222 (Tex. App.—Fort Worth 2004, pet. denied); Dupree v. Tex. Dep’t of Protective &
Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ).
Additionally, termination under subsection (E) must be based on more than
a single act or omission; the statute requires a voluntary, deliberate, and
conscious course of conduct by the parent. In re J.T.G., 121 S.W.3d [117, 125
(Tex. App.—Fort Worth 2003, no pet.)]; see also TEX. FAM. CODE ANN. §
161.001[(b)](1)(E). It is not necessary, however, that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d
at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-
being may be inferred from parental misconduct standing alone. Boyd, 727
S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004,
pet. denied).
In re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no pet.).
In this case, the trial mostly centered upon the failings of Mother, as she was the
children’s primary caregiver. The evidence and testimony reflected that Mother is a
chronic liar, has terrible choice in men,3 and was involved in various illegal activities,
leaving her little time to effectively care for her children. The evidence and testimony
nevertheless also reflected that D.B. knew about Mother’s inadequacies but did nothing
to protect the children from her. D.B.’s testimony also reflected his own failings as a
father.
3
In addition to her relationship with D.B., a registered sex offender, Mother was married twice. Her first
husband received a lengthy sentence for narcotics trafficking, and her second husband was convicted of
killing another man. Mother married her second husband while he was in jail awaiting trial. Mother
admitted that she had been present when the killing occurred. She was still married to her second husband
when she and D.B. had L.B., La’D.B., N.B., and A.B. After D.B. was arrested on his most recent charge,
Mother began a relationship with C.J., who also ended up in jail.
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Kimberly Whitt, an alternative response specialist with CPS, testified that L.B.,
who had been returned to Mother’s custody, was removed a second time after he was
injured while unsupervised. Whitt noted that L.B. is deaf and hyperactive and that he
should not be allowed outside unsupervised. Whitt testified that L.B., who was five years
old, had collided with a truck while riding his bicycle. The man involved in the accident,
Timothy Head, testified that he was unable to communicate with L.B. and that he saw no
adults around. Head noted that he finally was able to get L.B. to his grandmother’s
apartment with assistance from other children who were playing in the area.
D.B. denied during his testimony that he and Mother were in a relationship or that
they planned to get together again when he is released from jail. He admitted, however,
that he phoned Mother from jail whenever he had enough money in his jail account to
pay for the calls, often twice a day. The phone calls were recorded and revealed the
relationship between D.B. and Mother. The calls also revealed D.B.’s knowledge of
Mother’s living arrangements, her activities, and her treatment of L.B. One such call
included the following exchange:
Mother: Fuck. Fuck. I couldn’t answer because the car - - I was
right here with the fucking cops, man. I am following [Grandmother] to the
house. They just took Bay Bay to jail.
D.B.: What?
Mother: I am - - I had to go get - - I had to leave class and go get
[Grandmother]. I’m talking - - I’m talking on the speakerphone because I have to
have it in my lap because there is cops behind me. But their phone went up to the
house because [Grandmother] don’t have a license and there’s no insurance - -
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Shut the fuck up. [Mother talking to L.B.]
There ain’t no insurance on the car, so they are following us
to [Grandmother’s] house.
D.B.: Wow.
Another call included the following:
Mother: Okay. Damn, man. Wait. Calm your fucking ass down.
[Talking to L.B.]
D.B.: I don’t even hear him. Why are you yelling?
Mother: He - - man, he - - say something to your daddy. Go
aaahhh. He’s right here and trying to get me to open his fucking candy and I told
him he couldn’t have it.
Here, man. Here, take it. Get away from me.
Both D.B. and Mother testified that they did not believe that her verbal tirades had
an effect on L.B. since he was deaf. D.B. acknowledged, however, that cursing at L.B. was
not appropriate. D.B.’s testimony reflects that he did nothing to protect L.B. from
Mother’s abusive behavior. D.B. agreed that he did not try to calm her down nor did he
protest her treatment of L.B.
D.B. further testified that he knew Mother was involved in illegal and
inappropriate activities. D.B. knew that Mother was driving without a driver’s license or
insurance and that she could be arrested if stopped by the police. As reflected in one of
the recorded conversations, D.B. also knew that L.B. was in the car while Mother was
driving illegally. D.B. further testified that he knew Mother liked to gamble and that he
had conversations with her about the money she was losing. D.B. admitted that he knew
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gambling was illegal in Texas and that Mother was breaking the law. D.B. further noted
that he knew Mother had financial problems because she was unemployed and that he
told her on more than one occasion to get a job. Mother testified that she had been
supporting herself and the children on L.B.’s disability checks. It was not until L.B. was
removed from her custody that she found employment, although she provided no
verification of her employment to the Department.
D.B. testified that he knew Mother had been living with another man—C.J. D.B.
did not approve of the relationship because he did not believe that C.J. should be around
the children. D.B. stated that he knew that C.J.’s children had been removed from his
custody by the Department. D.B. also testified that he knew C.J. had been incarcerated
while D.B. was in jail. Mother knew about C.J.’s incarceration because she testified that
she also accepted calls from him from the jail.
D.B. admitted that he made no attempt to report Mother’s verbal abuse of L.B. or
her illegal and inappropriate activities to the Department. While D.B. argues that he did
not have the ability to contact anyone about Mother’s conduct while he was in jail, the
trial court could have reasonably concluded that D.B. could have reported the abuse to
his lawyer, to the Department employees who were present during the hearings held in
the case, or even to the judge who presided over the hearings.
D.B. also testified about his own situation and treatment of the children. D.B.
admitted at trial that he had been convicted twice for failing to register as a sex offender.
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He further testified that his parole was revoked when he cut off his ankle monitor and
that he has misdemeanor convictions for assault family violence and criminal trespass.
At the time of trial, D.B. was still in jail after being arrested for allegedly sexually
assaulting his niece. The trial court could have reasonably concluded that D.B.’s recent
incarceration would continue and that he would be subject to incarceration in the future.
Incarceration by itself does not “constitute engaging in conduct that endangers the
physical or emotional well-being of the child.” Robinson v. Tex. Dep’t of Protective &
Regulatory Servs., 89 S.W.3d 679, 686 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
“However, if all the evidence, including imprisonment, shows a course of conduct that
has the effect of endangering the physical or emotional well-being of the child, a finding
under section 161.001[(b)](1)(E) is supportable.” Id.; see also In re S.T., 263 S.W.3d 394, 401
(Tex. App.—Waco 2008, pet. denied) (“[E]vidence of imprisonment may be considered
with other evidence tending to establish that the parent has engaged in a course of
conduct which has the effect of endangering the child, and collectively such evidence can
support a finding to this effect.”). Multiple incarcerations “subject[ ] a child to a life of
uncertainty[,] and instability endangers the physical and emotional well-being of a
child.” See In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
Despite his multiple incarcerations, the evidence reflects that D.B. continued to
engage in illegal activities even after the children were removed from his custody. In a
recorded jail conversation with Mother, D.B. gave her advice on how to successfully
In re L.B. Page 10
complete a scam involving a falsified automobile title loan. “[A] court may consider
evidence establishing that a parent continued to engage in endangering conduct after the
child’s removal by the Department or after the child no longer was in the parent’s care,
thus showing the parent continued to engage in the course of conduct in question.” In re
C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.). “Intentional
criminal activity that exposes a parent to incarceration is conduct that endangers the
physical and emotional well-being of a child.” In re V.V., 349 S.W.3d 548, 554 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied). While D.B. denied knowing that the falsification
of the documents was illegal, the trial court, as the factfinder, could have disbelieved that
testimony.
D.B. also testified that he had been using marijuana since the age of nine. He was
forced to refrain from the use of marijuana only because he was in jail. A parent’s use of
illegal drugs, and its effect on his or her ability to parent, may qualify as an endangering
course of conduct. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
A parent’s illegal drug use and drug-related criminal activity may . . .
support a finding that the child’s surroundings endanger his or her physical
or emotional wellbeing. And “[b]ecause it exposes the child to the
possibility that the parent may be impaired or imprisoned, illegal drug use
may support termination under section 161.001(1)(E).” A parent’s
continued drug use demonstrates an inability to provide for the child’s
emotional and physical needs and to provide a stable environment for the
child.
In re M.R.R., No. 10-15-00303-CV, 2016 WL 192583, at *4 (Tex. App.—Waco Jan. 14, 2016,
no pet.) (mem. op.) (citations omitted); see also In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—
In re L.B. Page 11
Fort Worth 2009, pet. denied). The trial court could have reasonably concluded that
D.B.’s marijuana use would continue when he was released from jail and constitute an
inability to provide for the children’s emotional and physical needs or to provide a stable
environment for them.
D.B.’s testimony further established that he was also verbally abusive to L.B. D.B.
testified that he and Mother had nicknamed L.B. “Mun’sir,” which D.B. testified meant
“Monster.” He again attempted to excuse his behavior by noting that L.B. was deaf and
could not hear what they said. The verbal abuse was not solely directed at L.B. D.B.
testified that he and Mother also used the nickname “Sticky Butt” for La’D.B. and that
they laughed about her dyslexic tendencies.
Evidence of a parent’s endangering conduct toward other children or family
members is relevant to a determination of whether the parent engaged in behavior that
endangered the child that is the subject of the suit. See In re D.L.N., 958 S.W.2d 934, 939
(Tex. App.—Waco 1997, pet. denied), disapproved of on other grounds by J.F.C., 96 S.W.3d
at 267 n.39 and C.H., 89 S.W.3d at 26 (holding that a parent’s neglect of older children
could indicate that the child that is the subject of the suit “would face this type of
treatment in the future if returned” to the parent); see also In re H.N.J., No. 10-10-00365-
CV, 2011 WL 2937473, at *3 (Tex. App.—Waco Jul. 13, 2011, no pet.) (mem. op.) (citing
Cervantes-Peterson v. Tex. Dep’t of Family and Protective Servs., 221 S.W.3d 244, 253 (Tex.
App.—Houston [1st Dist.] 2006, no pet.)) (“[T]he manner in which a parent treats other
In re L.B. Page 12
children in the family can be considered in deciding whether that parent engaged in a
course of conduct that endangered the physical or emotional well-being of a child.”). The
trial court could have reasonably inferred that the manner in which D.B. and Mother
treated L.B. and La’D.B. was an indicator of their treatment of N.B. and A.B.
D.B. additionally testified that he had no contact with the children for the year that
he had been incarcerated other than waving at L.B. at one of the hearings. D.B. also had
previously agreed to waive his parental rights if it would help Mother retain custody.
Further, the numerous recorded conversations with Mother were spent arguing and
berating each other rather than expressing any concern for the welfare of the children.
“A lack of all contact with a child without any proffered excuse and no effort to ensure
her safety—coupled with incarceration and illegal drug use—is sufficient to support a
termination finding based on endangerment.” In re Z.N.M., No. 14-17-00650-CV, 2018
WL 358480, at *6 (Tex. App.—Houston [14th Dist.] Jan. 11, 2018, no pet.). The trial court
could have reasonably concluded that D.B.’s behavior, as well as Mother’s, constituted a
continuing danger to the children and that D.B. permitted the children to remain in an
endangering environment. As the ad litem noted in closing argument, there has never
been a case “where a mother and a father have less of a moral compass than these two
people.”
Viewing all the evidence in the light most favorable to the trial court’s findings,
we therefore conclude that a reasonable trier of fact could have formed a firm belief or
In re L.B. Page 13
conviction that D.B. knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endangered their physical or emotional well-being and
that D.B. engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered their physical or emotional well-being. We hold
that the evidence is legally sufficient to establish that D.B. violated Family Code
subsections 161.001(b)(1)(D) and (E).
Viewing the evidence as a whole, we also conclude that a factfinder could have
reasonably formed a firm belief or conviction that D.B. knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endangered their
physical or emotional well-being and that D.B. engaged in conduct or knowingly placed
the children with persons who engaged in conduct that endangered their physical or
emotional well-being. We therefore hold that the evidence is factually sufficient to
establish that D.B. violated Family Code subsections 161.001(b)(1)(D) and (E). We thus
overrule D.B.’s first four issues.
Because we have overruled D.B.’s first four issues, we do not reach D.B.’s
remaining issues that challenge the legal and factual sufficiency of the evidence as it
relates to the violation of subsections (N) and (O). See In re S.L., 421 S.W.3d 34, 37 (Tex.
App.—Waco 2013, no pet.) (if the trial court finds multiple predicate violations, we may
affirm based on any one ground). We affirm the trial court’s order of termination.
In re L.B. Page 14
REX D. DAVIS
Justice
Before Chief Justice Gray,*
Justice Davis, and
Justice Scoggins
*(Chief Justice Gray concurs in the court’s judgment to the extent it affirms the trial
court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed March 21, 2018
[CV06]
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