in the Interest of M.S., N.S., C.S. and K.S., Children ( 2019 )

Opinion filed October 4, 2019
In The
Eleventh Court of Appeals
__________
No. 11-19-00132-CV
__________
IN THE INTEREST OF M.S., N.S., C.S., AND K.S., CHILDREN
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 024152
MEMORANDUM OPINION
After a second termination trial, the trial court signed an order in which it
terminated the parental rights of M.S., N.S., C.S., and K.S.’s mother and father.
Only the father (hereinafter “Father”) has appealed. We affirm.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). 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 2019). To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has committed one of the acts listed in
Section 161.001(b)(1)(A)–(U) of the Family Code and that termination is in the best
interest of the child. Id. § 161.001(b).
In this case, the trial court found that Father committed three of the acts listed
in Section 161.001(b)(1)—those found in subsections (D), (E), and (O).
Specifically, the trial court found that Father (1) knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endangered the
children’s physical or emotional well-being, see id. § 161.001(b)(1)(D); (2) engaged
in conduct or knowingly placed the children with persons who engaged in conduct
that endangered the children’s physical or emotional well-being, see id.
§ 161.001(b)(1)(E); and (3) failed to comply with the provisions of a court order that
specifically established the actions necessary for Father to obtain the return of the
children who had been in the permanent or temporary conservatorship of the
Department of Family and Protective Services (hereinafter “the Department”) for
not less than nine months as a result of the children’s removal from Father for abuse
or neglect, see id. § 161.001(b)(1)(O). The trial court also found, pursuant to
Section 161.001(b)(2), that termination of Father’s parental rights was in the best
interest of the children.
In two issues, Father challenges the legal sufficiency of the evidence to
support the trial court’s findings under subsections (D) and (E) that Father
endangered the children. To determine if the evidence is legally sufficient in a
parental termination case, we review all the evidence in the light most favorable to
the finding and determine whether a rational trier of fact could have formed a firm
belief or conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005) (per curiam) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); In
re M.G., No. 11-18-00351-CV, 2019 WL 2426775, at *1 (Tex. App.—Eastland June
11, 2019, no pet.). In conducting our review, we must consider all the evidence. In
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re J.P.B., 180 S.W.3d at 573. We assume that the factfinder resolved disputed facts
in favor of its finding if a reasonable factfinder could do so. Id. (citing In re J.F.C.,
96 S.W.3d at 266). We cannot weigh witness-credibility issues that depend on the
appearance and demeanor of the witnesses, and we must defer to the factfinder’s
determinations as long as they are reasonable. Id.
Background
On June 12, 2017, one of M.S., N.S., C.S., and K.S.’s siblings was removed
from the home following an outcry of physical abuse by Father. On June 14, 2017,
M.S., N.S., C.S., and K.S., along with three younger siblings, were also removed
from the home. The following day, the Department filed a petition for protection of
the children, for conservatorship, and for termination of the parental rights of the
mother (hereinafter “Mother”) and Father. In a first amended original petition filed
on June 26, 2017, the Department sought to terminate Father’s parental rights based
on subsections (D), (E), (K), (N), and (O) of Section 161.001(b)(1). Attached to the
first amended petition were three affidavits by representatives of the Department
stating the factual bases for the removal of the children, including physical abuse of
the children, domestic violence by Father, abandonment of the children by Mother,
use of drugs by Mother and Father, and the condition of the house in which the
children were living.
The case was set for final hearing on June 18, 2018. Prior to trial, the parties
represented to the trial court that they had reached an agreement, pursuant to which
(1) Mother and Father would voluntarily relinquish their parental rights to the four
youngest children; (2) the Department would be named the permanent managing
conservator of all eight children; (3) Mother and Father would comply with service
plans that, among other things, required them to successfully participate in classes
and counseling and to submit to random drug tests; and (4) if Mother and Father
successfully completed their service plans, M.S., N.S., C.S., and K.S. would be
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returned, one at a time, to Mother’s and Father’s possession. The agreed plan would
take approximately one year to complete.
The trial court signed an order reflecting the parties’ agreement (the June 18
Order). The trial court appointed the Department as the permanent managing
conservator and Mother and Father as possessory conservators of M.S., N.S., C.S.
and K.S. The trial court specifically ordered (1) that Mother and Father were
required to continue to “work” their respective service plans; (2) that Mother’s and
Father’s failure to submit to random drug tests would be “considered a positive test”;
(3) that, based on successfully completing the ordered services, Mother and Father
would have “step-up” visitation and possession of the children; and (4) that, if
Mother and Father failed to attend any scheduled therapeutic session or visitation
with the children, visitation would cease and the parties would agree to a new
schedule for the monitored return of the children. The trial court also ordered that,
if Mother tested positive for any illegal substance:
[T]he visitation and/or monitored returns of [M.S., N.S., C.S., and K.S.]
will be suspended and the children will be placed back into foster care,
if they are no longer in care, and the Department will file for
termination of the parental rights of both [Mother] and [Father], due to
failure to comply with the family plans of service for reunification.
The trial court denied all relief requested by the Department that was not expressly
granted, terminated Mother’s and Father’s parental rights to the four youngest
children, and severed those children from this case.
Pursuant to his service plan, Father was required to attend and fully participate
in a drug/alcohol assessment and a psychological assessment; to attend and fully
participate in substance abuse counseling, individual counseling, and family
counseling; to obtain and maintain a legal and steady source of income as well as
safe and stable housing; and, with regard to his role in the removal of the children,
to provide a plan of action to prevent future abuse and neglect of the children. Father
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was also required to attend Al-Anon meetings and provide meeting sheets to the
Department every month; to attend, participate in, and successfully complete a
certified Battering Intervention and Prevention Program (BIPP); and to attend and
fully complete protective parenting classes. Father agreed to inform the Department
of any changes in his address, phone number, or employment and to provide the
Department with sufficient information on anyone living in the home so that a
background check could be conducted. Finally, Father agreed not to use drugs or
alcohol or participate in any criminal activity and to submit to random drug screens.
On June 21, 2018, Father suspected that Mother was using methamphetamine.
Mother and Father “started having words,” and Father pulled down Mother’s pants
to confirm that she had been injecting methamphetamine into her thighs. Father
forced Mother to leave the house, notified the Department of what had happened,
and asked the police to take the methamphetamine and drug paraphernalia that he
had found in the house. Father was discharged from BIPP based on his behavior
with Mother.
The Department required Mother and Father to submit to random drug tests
on June 26, 2018. Mother failed to appear for the requested test and, pursuant to the
June 18 Order and the service plan, was deemed to have tested positive. Father
tested positive for methamphetamine at a level that indicated regular usage.
On July 3, 2018, the Department moved to modify the June 18 Order, seeking
to terminate Mother’s and Father’s parental rights to M.S., N.S., C.S., and K.S. The
Department pleaded that Mother’s and Father’s conduct since the June 18 Order
constituted a material and substantial change in circumstances and requested that
Mother’s and Father’s parental rights be terminated based on their failure to comply
with the June 18 Order and based on the grounds listed in the Department’s petition
to terminate that was filed prior to the June 18 Order.
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Mother did not appear at the hearing on the Department’s motion. Father
appeared, denied that he used drugs or physically abused the children, and stated that
he had filed a petition for divorce from Mother. Father requested that the trial court
give him the opportunity to complete his service plan and be reunited with M.S.,
N.S., C.S., and K.S. The trial court terminated both Mother’s and Father’s rights to
the children based on subsections (D), (E), and (O).
Analysis
In two issues, Father contends that, because he had no contact with the
children after the June 18 Order was entered, the evidence is legally insufficient to
support the trial court’s findings that Father’s parental rights should be terminated
pursuant to subsections (D) and (E).
Father does not challenge the trial court’s finding that Father’s parental rights
should be terminated pursuant to subsection (O). Further, there was clear and
convincing evidence that Father failed to comply with the provisions of the June 18
Order; that, at the time of the final hearing, the children had been in the Department’s
care for over nine months; and that the children had been removed from Father’s
care due to abuse or neglect. Only one statutory ground is required to terminate
parental rights. In re N.G., 577 S.W.3d 230, 232–33 (Tex. 2019) (per curiam).
Accordingly, we affirm the trial court’s order based on its finding that Father failed
to comply with the provisions of a court order that specifically established the
actions necessary for him to obtain the return of the children.
However, even though we have upheld the trial court’s finding under
subsection (O), we must also address Father’s complaints that the evidence is legally
insufficient to support the trial court’s findings under subsections (D) and (E). Id.
at 234–35, 237 (concluding that due process and due course of law require an
appellate court to address grounds (D) and (E) when raised by the parent on appeal
and also require the appellate court to detail its analysis on grounds (D) and (E)).
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We are required to do so because the termination of parental rights based on
subsections (D) and (E) may serve as a basis for the possible termination of parental
rights to a different child. Id. at 235; see also FAM. § 161.001(b)(1)(M) (providing
for the termination of parental rights if there is clear and convincing evidence that
the parent has had his parental rights terminated with respect to another child based
on a finding that his conduct violated subsection (D) or (E)).
Relying on Section 161.004 of the Family Code, Father contends that
(1) because this was the Department’s second attempt to terminate his parental rights
to M.S., N.S., C.S., and K.S., it could rely on conduct prior to the June 18 Order only
if there had been a material and substantial change in circumstances since the order;
(2) the trial court failed to find that there had been a material and substantial change
in circumstances since the June 18 Order; and (3) there is no evidence of any conduct
by Father after the June 18 Order that endangered the children as defined by
subsections (D) and (E).
Section 161.004 of the Family Code provides that, after the rendition of an
order that previously denied termination of the parent-child relationship, a trial court
may terminate the parent-child relationship if:
(1) The petition seeking to terminate parental rights is filed after the date
the order denying the termination was rendered;
(2) The “circumstances of the child, parent, sole managing conservator,
possessory conservator, or other party affected by the order denying
termination have materially and substantially changed since the date
that the order was rendered;”
(3) The “parent committed an act listed under Section 161.001 before the
date the order denying termination was rendered; and”
(4) The “termination is in the best interest of the child.”
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FAM. § 161.004(a) (West 2014). At a hearing under Section 161.004, the trial court
may consider evidence presented at previous hearings in a suit to terminate the
parent-child relationship of the parent with respect to the same child. Id.
§ 161.004(b).
However, when the Department seeks termination after a trial court’s prior
denial of termination, the Department is not limited to proceeding under
Section 161.004. Rather, the trial court may terminate parental rights (1) under
Section 161.001, which requires clear and convincing evidence of acts or omissions
having occurred since the denial, or (2) under Section 161.004, which requires clear
and convincing evidence of an act or omission under Section 161.001 that occurred
before the denial and evidence of a material and substantial change since the denial.
In re A.L.H., 515 S.W.3d 60, 89 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied); In re K.G., 350 S.W.3d 338, 352 (Tex. App.—Fort Worth 2011, pet.
denied). In this case, the Department moved for termination based on Father’s
failure to comply with the June 18 Order as well as on the grounds set out in the
petition to terminate, which included subsections (D) and (E). Therefore, if there
was legally sufficient evidence of conduct by Father after the June 18 Order that
would support the termination of his parental rights under either subsection (D) or
subsection (E), the trial court, pursuant to Section 161.001, could terminate Father’s
parental rights on that statutory ground.
We turn first to Father’s second issue in which he complains that there was
legally insufficient evidence of conduct after June 18, 2018, to support the trial
court’s finding that Father’s parental rights should be terminated pursuant to
subsection (E). Both subsections (D) and (E) use the term “endanger.” FAM.
§ 161.001(b)(1)(D), (E). “‘To endanger’ means to expose a child to loss or injury
or to jeopardize a child’s emotional or physical health.” In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also In re M.C., 917
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S.W.2d 268, 269 (Tex. 1996) (per curiam). The term “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). “In considering whether the
evidence is legally sufficient to support a finding of endangerment, we must
determine whether there was ‘some evidence of endangerment on which a
reasonable factfinder could have formed a firm belief or conviction of
endangerment.’” Id. (quoting In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)).
The relevant inquiry under subsection (E) is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re M.G., 2019 WL 2426775, at *4.
Additionally, termination under subsection (E) must be based on more than a single
act or omission; a voluntary, deliberate, and conscious course of conduct by the
parent is required. Id.
Endangerment may be inferred from parental misconduct alone. Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re P.N.T., No. 14-
18-01115-CV, 2019 WL 2426692, at *18 (Tex. App.—Houston [14th Dist.] June 11,
2019, pet. filed). It is not necessary that the endangering conduct be directed at the
child or that the child actually suffer injury. In re M.G., 2019 WL 2426775, at *4;
see also Boyd, 727 S.W.2d at 533. Further, the endangering conduct does not have
to occur in the child’s presence, and endangerment can arise based on a parent’s
conduct after a child was removed from the home. Walker v. Tex. Dep’t of Family
& Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). “As a general rule, conduct that subjects a child to a life of uncertainty
and instability endangers the physical and emotional well-being of [the] child.” In
re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied); see also
In re P.N.T., 2019 WL 2426692, at *18.
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Domestic violence or drug use may constitute evidence of endangerment. In
re M.G., 2019 WL 2426775, at *4; In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—
Eastland 2010, pet. denied). Specifically, the “continued use of illegal drugs in the
face of the threat of a parent’s loss of his parental rights is conduct showing a
voluntary, deliberate, and conscious course of conduct, which by its nature,
endangers the child’s well-being.” In re K.B., No. 05-17-00428-CV, 2017 WL
4081815, at *4 (Tex. App.—Dallas Sept. 15, 2017, no pet.) (mem. op.). When, as
in this case, there has been a prior order denying termination, we may consider
evidence of conduct that occurred prior to that order to corroborate evidence of a
parent’s endangering conduct after the order. See Wilson v. Elliott, 73 S.W. 946,
947 (Tex. 1903) (concluding that evidence of conduct before the first decree was
admissible to corroborate the evidence of a subsequent conduct of a like nature);
C.B. v. Tex. Dep’t of Family & Protective Serv., 440 S.W.3d 756, 766 (Tex. App.—
El Paso 2013, no pet.); see also B.L.M. v. J.H.M., III, No. 03-14-00050-CV, 2014
WL 3562559, at *16 (Tex. App.—Austin July 17, 2014, pet. denied) (mem. op.)
(concluding that trial court could consider conduct prior to first order that established
parent engaged in continuous course of conduct that endangered child).
Here, three days after the June 18 Order, Father had an altercation with Mother
in which he accused her of using drugs and pulled down her pants to look for
injection marks. Father was discharged from BIPP based on his behavior. Further,
even though Father’s service plan prohibited him from using drugs, Father tested
positive for methamphetamine on June 26, 2018. Although Father denied using
methamphetamine, there was evidence that the level of methamphetamine found in
the test could be due only to the regular use of the drug. Further, evidence of
Mother’s and Father’s conduct prior to June 18, 2018, corroborated the existence of
domestic violence and drug use in their relationship. Finally, there was evidence
that Father’s repeated failures to complete the actions that would allow him to reunite
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with the children was negatively affecting the children and preventing them from
healing from “the years of neglect and abuse that they suffered.” In other words,
Father’s conduct after June 18, 2018, continued to subject the children to “a life of
uncertainty and instability.” In re R.W., 129 S.W.3d at 739.
We conclude that there was legally sufficient evidence of conduct by Father
after the June 18 Order to support the trial court’s finding pursuant to
Section 161.001(b)(1)(E) that Father knowingly engaged in conduct that endangered
the children’s physical or emotional well-being. Therefore, we overrule Father’s
second issue.
In his first issue, Father complains that the evidence is legally insufficient to
support the trial court’s finding that Father’s parental rights should be terminated
pursuant to subsection (D). As noted above, only one statutory ground is necessary
to support the trial court’s order terminating Father’s parental rights, and Father has
not challenged the trial court’s finding that Father’s parental rights to M.S., N.S.,
C.S., and K.S. should be terminated based on Section 161.001(b)(1)(O). To satisfy
due process and due course of law concerns, we have also considered Father’s
challenge to the sufficiency of the evidence to support the trial court’s finding that
Father’s parental rights should be terminated based on Section 161.001(b)(1)(E) and
have determined that the evidence is sufficient for a rational factfinder to form a firm
belief or conviction that Father engaged in conduct—after the June 18 Order—that
endangered the children. Because we have affirmed the termination based on
subsection (O) and because the termination of parental rights based on subsection
(E) carries the same potential collateral consequences regarding Father’s parental
rights to another child as does a termination based on subsection (D), see FAM.
§ 161.001(b)(1)(M); In re N.G., 577 S.W.3d at 234, we need not address Father’s
complaint that the evidence is legally insufficient to support the trial court’s finding
that Father’s parental rights to M.S., N.S., C.S., and K.S. should be terminated based
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on Section 161.001(b)(1)(D), see TEX. R. APP. P. 47.1. We overrule Father’s first
issue.
This Court’s Ruling
We affirm the trial court’s order of termination.
KEITH STRETCHER
JUSTICE
October 4, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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