in the Interest of D.B. ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-428-CV
IN THE INTEREST OF D.B.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant David B. appeals the trial court’s judgment terminating his
parental rights to his son, D.B. 2 In six points, David argues that the trial court
abused its discretion by denying his motion for continuance and that the
evidence is legally and factually insufficient to support the trial court’s judgment
terminating his parental rights. Because the trial court did not abuse its
1
… See T EX. R. A PP. P. 47.4.
2
… D.B.’s mother’s parental rights were also terminated; however, she did
not appeal.
discretion by denying David’s motion for continuance and because the record
demonstrates that termination of David’s parental rights was proper under
section 161.001, we will affirm.
II. F ACTUAL B ACKGROUND
A. 2006 CPS Referral
On August 30, 2006, Child Protective Services (CPS) received a referral
for neglectful supervision and physical neglect of D.B. by David. D.B. was two
years old at the time and lived with David at David’s mother’s house. The
caller initiating the referral indicated that (1) D.B.’s mother had been released
from prison, was on drugs, and had access to D.B.; (2) D.B. was left in the
primary care of his paternal grandmother, who had difficulty caring for him
because she was an insulin-dependent diabetic and had other severe medical
problems; (3) David took the grandmother’s Social Security check, allegedly to
buy food, but there was never any food in the house; (4) the home had trash
strewn about and was infested with roaches; and (5) D.B. had run away from
his grandmother, and due to her disability, she had trouble catching him.
Approximately a week after the referral came in, CPS investigator Jennifer
Cook went to the home and visited with the grandmother and D.B. Although
D.B. appeared of average height and weight and did not have any marks or
bruises, he was not verbal. The house was sparsely furnished; D.B. slept on
2
a cushion on the floor, and during the interview, the grandmother sat at a card
table with one chair. Cook was concerned about the grandmother’s ability to
care for D.B. because she did not appear to be in good health; had not bathed;
wore soiled clothing; had extremely red eyes, one of which appeared to have
an infection; had very swollen legs; and had a hard time walking and sitting.3
When Cook made contact with David later that day, he denied all of the
allegations. He said that he did not leave D.B.’s mother alone with D.B. David
stated that he could provide for D.B. because he was employed with the Como
Community Center and received disability benefits because of his arthritis,
asthma, and bipolar disorder. David also stated that he felt that his mother,
D.B.’s grandmother, could adequately care for D.B.
Cook instructed David to submit to a drug test, which he agreed to do.
However, David did not go through with the test. He admitted that he had
smoked marijuana within the past six months and said that the test would come
back positive for another drug. Cook advised David that he still needed to take
the drug test. On September 13, 2006, David told Cook that he still had not
taken the drug test and that his last day of work would be September 15
3
… The record also revealed that the grandmother had a case open with
Adult Protective Services because she was unable to care for herself due to her
diabetic condition.
3
because his services were no longer needed at the community center. When
David ultimately submitted to a hair follicle test on September 15, 2006, the
results came back positive for cocaine.
Cook and her supervisor made a home visit on September 16, 2006.
David appeared unable to comprehend the conversation that they were having,
and they suspected that he was under the influence of some type of substance.
During that visit, David agreed to voluntarily place D.B. with David’s stepson,
Cedric Clark. Clark had a criminal charge for possession of marijuana pending
against him, so CPS placed D.B. with Clark’s girlfriend, Tanisha Hodges.
David contacted CPS in October and scheduled an appointment to discuss
receiving services. During that appointment, David mentioned that a niece
named Lynette Taylor wanted to be considered as a placement for D.B. David
said that he was not happy with D.B.’s current placement because Hodges was
not allowing him to have as much access to D.B. as he wanted.
After that meeting, David failed to follow through with a scheduled drug
assessment test. David and the grandmother apparently had been evicted from
the apartment they were previously living in, and Cook had difficulty locating
David. On November 28, 2006, David called Cook and told her that he was
living in Dallas. After that phone call, Cook did not have further contact with
David regarding the August 2006 referral because he did not provide an address
4
or phone number where he could be reached. CPS eventually closed the case
for lack of contact with the parents and disposed of the case as “reason to
believe for neglectful supervision” of D.B. by David.
B. 2007 CPS Referral
On January 22, 2007, Hodges contacted Cook and told her that she
could no longer care for D.B. Cook was not able to contact David or D.B.’s
mother, so D.B. was placed in foster care. At the time that D.B. left Hodges’s
care, he had just turned three. Cook observed that D.B. never spoke. Cook
said that D.B. appeared to understand verbal commands and could follow them
but did not speak one word. Hodges had told Cook that D.B. liked to be very
close to people and that he would need to be reminded to use the bathroom.
Cook noted that D.B. played right next to her, that he was unable to tell her
when he was hungry or thirsty, and that he was “definitely very delayed.”
Cook ultimately discovered that D.B.’s mother was in jail on prostitution
charges. During Cook’s conference with D.B.’s mother, she learned that David
was also in jail. Cook thereafter visited David in jail and told him that Hodges
could no longer care for D.B. and that he was in foster care. David responded
that D.B. “might as well be left in [foster] care.” David did not ask how D.B.
was doing or where he was. He also told Cook that he was incarcerated for
forgery and would be in jail for at least a year.
5
Cook disposed of this new investigation as “reason to believe for
neglectful supervision” by David and D.B.’s mother. Cook stated that a
preponderance of the evidence showed that David had voluntarily placed D.B.
with Hodges who could no longer care for the child, that there were no relatives
to care for D.B., that Hodges had not spoken with either parent in several
months, that the voluntary placement had not received any financial assistance
from D.B.’s parents in order to care for D.B., that both parents were
incarcerated at the time of D.B.’s removal, that D.B.’s mother had been
arrested on charges of prostitution, and that David had been arrested for
forgery.4
C. David’s Perspective
David testified at trial and said that D.B. had lived with him since birth.
David’s mother, D.B.’s grandmother, helped with raising D.B. D.B.’s mother did
not participate in raising D.B.
David said that he tried to provide some financial support for D.B. while
he was staying with Hodges; however, he claimed that his stepson Clark did
4
… In addition to the forgery charge, Cook’s criminal history check of
David revealed that he had prior charges for robbery, unauthorized use of a
vehicle, failure to identify a fugitive from justice, theft of property, possession
of a controlled substance, and evading arrest. Cook said that of those charges,
only the theft of property charge had been dismissed.
6
not come by as he had promised to pick up the money. David said he did not
know where Hodges lived, and it never crossed his mind to call CPS to tell them
he had money for Hodges. After David’s job ended at Como Community
Center, he said that he had worked construction in Arlington.
David said that he was not using marijuana and methamphetamines back
in September 2006 but admitted that he was using cocaine about every two
weeks when he got paid. He said that he did not take advantage of the drug
treatment offered by CPS because he did not have transportation.
At the time of trial, David was serving a one-year sentence in state jail for
forgery of his mother’s social security checks. David said that he had also been
convicted of robbery, auto theft, and possession of cocaine. He admitted that
he had been arrested on numerous occasions for tickets. In total, David had
been arrested over 160 times. David admitted that he was not acting in D.B.’s
best interest when he committed the offenses for which he was charged.
David said that D.B. did not have any developmental problems and that
D.B. played like other children did. However, David later testified that he had
told Clark that he needed to take D.B. to a speech therapist. David did not
remember who D.B.’s pediatrician was, but he remembered that D.B. took two
naps a day, went to bed at 9 p.m., loved spaghetti and weenies, and enjoyed
7
riding his Big Wheel bike and playing at the park. David also denied any
knowledge of episodes when D.B. would eat until he became sick.
David said that he had concerns about D.B.’s staying with Hodges
because Hodges would not respond to his questions about how D.B. was doing.
David said that he had not seen D.B. in almost two years. He admitted that he
had not communicated with the caseworker and had not sent D.B. any letters
nor asked to receive photos of D.B.
While he was in jail, David took CHANGES, parenting classes, and drug
and alcohol classes. David said that his correspondence from CPS has
indicated that he would be able to work his service plan after he was released
from jail. David said that when he is released from jail, he wants to get a job,
get stable, and take the classes that he needs to take to get his son back.
David stated that he loves his son.
D. D.B.’s Outlook
Bolu Odelusi, the ongoing CPS caseworker for D.B.’s case, testified that
when D.B. was placed in foster care, he could not speak, he did not smile, he
did not walk, he did not attach well to others, and he “hoarded food.” CPS
moved D.B. from a basic foster home to a therapeutic foster home to address
his delayed developmental issues. While in therapeutic foster care, D.B.
received occupational, physical, play, and speech therapies and was enrolled
8
in a preschool for children with disabilities. D.B. is thriving in foster care; he is
very attached to his foster mom; he is now speaking; he interacts well with
children in the home; and he is getting much better about not hoarding food.
Odelusi testified that it was not in D.B.’s best interest for David to be
given additional time to work the service plan. D.B. has several disabilities and
“really needs to be in a place where stability is provided.” Odelusi also testified
that it was in D.B.’s best interest for David’s parental rights to be terminated
because David has an extensive criminal history, including illegal drug use
during the time that he was D.B.’s primary caregiver; because David placed
D.B. in an environment where he was not properly taken care of; and because
David failed to communicate with CPS after he received a service plan.
E. Trial Court’s Decision
At the conclusion of the termination trial, the trial court took judicial
notice of a “Certificate of Paternity Registry” that was on file with the court
indicating that a diligent search of the paternity registry had been made, and no
notice of intent to claim paternity had been located pertaining to D.B. The trial
court thereafter terminated David’s parental rights to D.B. and included the
following in the “Order of Termination”:
9
9. Termination of Alleged Biological Father DAVID [B.’s] Parental
Rights
9.1. The Court finds by clear and convincing evidence that,
after having waived service of process or being served
with citation in this suit, DAVID [B.] did not respond by
filing an admission of paternity or by filing a
counterclaim for paternity or for voluntary paternity to
be adjudicated under chapter 160 of the Texas Family
Code before the final hearing in this suit.
9.2. The Court finds by clear and convincing evidence that
David [B.] has:
9.2.1. knowingly placed or knowingly allowed the
child to remain in conditions or
surroundings w hich endanger the
emotional or physical well-being of the
child; and
9.2.2. engaged in conduct or knowingly placed
the child with persons who engaged in
conduct which endangers the physical and
emotional well-being of the child; and
9.3. The Court also finds by clear and convincing evidence
that termination of the parent-child relationship, if any
exists or could exist, between the alleged father and
[D.B.], the child the subject of this suit, is in the best
interest of the child.
This appeal followed.
III. M OTION FOR C ONTINUANCE
In his first point, David argues that the trial court abused its discretion by
denying his motion for continuance and by holding the termination trial prior to
10
his release from jail. Specifically, David complains that he thought he would be
able to work his service plan after his release from jail because some of the
required services were not available in jail.
To determine whether a trial court abused its discretion, we must decide
whether it acted without reference to any guiding rules or principles; in other
words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.
1159 (1986). Whether the trial court grants or denies a motion for continuance
is within its sound discretion. See BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 800 (Tex. 2002); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.
1986); see also In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.—Houston [14th
Dist.] 2002, no pet.). The trial court’s action in denying a continuance will not
be disturbed unless the record discloses a clear abuse of discretion. State v.
Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988).
A motion for continuance shall not be granted except for sufficient cause
supported by an affidavit, consent of the parties, or by operation of law. T EX.
R. C IV. P. 251. If appellant provides no record of the evidence presented to the
trial court, we must presume that the evidence supports the ruling. See Wil-
Roye Inv. Co. II v. Wash. Mut. Bank, F.A., 142 S.W.3d 393, 401 (Tex.
11
App.—El Paso 2004, no pet.); In re Guardianship of Berry, 105 S.W.3d 665,
667 (Tex. App.—Beaumont 2003, no pet.).
Here, David submitted a verified motion for continuance, and we have
been provided with a record of the evidence presented to the trial court. We
will therefore review that evidence and determine whether the trial court abused
its discretion by denying David’s motion for a continuance.
The record reveals that at the April 2007 status review hearing, the trial
court found that David
has reviewed and understands the service plan and has been
advised that unless he is willing and able to provide the child with
a safe environment, even with the assistance of a service plan,
within the reasonable period of time specified in the plan, his
parental and custodial duties and rights may be subject to
restriction or to termination or the child may not be returned to
him. [Emphasis added.]
At the time of that hearing, the initial service plan stated that the permanency
goal was “Family Reunification” and that the projected date for achieving
permanency was “1/31/08,” meaning that David had until January 31, 2008
to complete the services listed on his plan. Odelusi testified, however, that a
parent’s completion of a service plan did not guarantee that a child would be
returned to that parent.
The “Permanency Plan and Permanency Progress Report” submitted by
the case worker on July 12, 2007, repeatedly stated that “[u]pon return from
12
incarceration, [David] will” comply with various provisions. However, it also
stated that David “has not returned any form of communication to the worker.
It is the worker’s assumption that [David] is not doing any type of services
while incarcerated.” Two weeks later, on July 26, 2007, the trial court held
a permanency hearing and entered an order finding that David had “not
demonstrated adequate and appropriate compliance with the service plan,”
setting the case for trial on November 19, 2007, and setting a dismissal date
of January 29, 2008 pursuant to family code section 263.306(11). See T EX.
F AM. C ODE A NN. § 263.306(11) (Vernon 2002). Prior to the hearing date, on
November 8, 2007, the case worker submitted a revised permanency plan,
which reflected that family reunification was no longer the permanency goal
and that adoption by a relative was being pursued.
David filed a motion for continuance, requesting an opportunity to
complete the services in his plan. David, however, had not even begun his
service plan (except to the extent, if any, that the parenting, drug and alcohol
classes he took in jail satisfied any aspect of the plan), which required him to
participate in parenting classes through the Child and Family Guidance Center;
demonstrate the ability to participate in the rearing of D.B. while he was in the
possession of the foster home caregivers; maintain stable housing, employment,
and transportation; undergo a drug/alcohol assessment through Resource
13
Recovery, including random urinalyses; maintain a visitation schedule with D.B.;
participate in and follow the recommendations of the individual counseling
offered through Positive Influence; undergo a psychological evaluation through
Positive Influence; comply with the requirements of his probation and his
probation officer; and maintain contact with the CPS worker. David could not
have started and completed all of the required services between his December
21, 2007 expected release date and the completion date listed in the service
plan—January 31, 2008. And David’s motion for continuance failed to allege
exactly how long he thought it would take him to complete these various
services. Moreover, during his months in jail, David had not communicated
with the CPS case worker or responded to her correspondence.
The record demonstrates that David had approximately four months’
notice of the trial setting but waited to file a motion for continuance until the
morning that the case was called for trial. Although David knew his expected
release date, he did not communicate it to his caseworker or move for a
continuance sooner to enable him a better opportunity to start and complete all
the services between his December 21, 2007 release date and the January 31,
2008 compliance date set forth in the initial service plan.
Additionally, David’s motion for continuance and his arguments in support
of the motion do not claim that he was unprepared for trial. David has thus
14
failed to demonstrate that the trial court abused its discretion by denying his
motion for continuance. See E.L.T., 93 S.W.3d at 375. We therefore overrule
David’s first point.
IV. F INDINGS S UPPORTING T ERMINATION
A. Section 161.002 Finding
Although David raises legal and factual sufficiency challenges to the trial
court’s findings that he knowingly placed D.B. with persons or allowed D.B. to
remain in conditions that endangered D.B.’s physical or emotional well-being,
he did not challenge the trial court’s finding that his rights should be terminated
under section 160.002(b)(1). TDFPS argues that the trial court’s judgment
should be affirmed based on this unchallenged finding.
Section 161.002(b)(1) provides that “[t]he rights of an alleged father may
be terminated if: (1) after being served with citation, he does not respond by
timely filing an admission of paternity or a counterclaim for paternity under
Chapter 160.” T EX . F AM. C ODE A NN. § 161.002(b)(1) (Vernon Supp. 2007).
Subsection (b)(1) thus allows a trial court to summarily terminate the rights of
an alleged biological father who does not assert his paternity by filing an
admission of paternity or a counterclaim for paternity. Id.; see Phillips v. Tex.
Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 357 (Tex.
App.—Austin 2000, no pet.). If the alleged father does file an admission of
15
paternity or a counterclaim for paternity, then subsection (a) allows the alleged
biological father “to stave off summary termination of his rights and require[s
TDFPS] to meet the high burden of proof found in section 161.001” of the
Texas Family Code. Phillips, 25 S.W .3d at 357; see T EX. F AM. C ODE A NN. §
161.002(a). Therefore, by filing an admission or counterclaim for paternity, the
alleged father is given the right to require TDFPS to prove by clear and
convincing evidence that he engaged in one of the types of conduct listed in
section 161.001(1) and that termination is in the best interest of the child.
Phillips, 25 S.W.3d at 357. If the alleged father, however, does not file such
an admission or counterclaim, then subsection (b) permits the trial court to
summarily terminate his parental rights without TDFPS’s having to meet the
high burden of proof found in section 161.001. See T EX. F AM. C ODE A NN . §
161.002(a); Phillips, 25 S.W.3d at 357.
TDFPS in its brief characterizes the record as “factually confusing
regarding this issue,” and our review of the record confirms this. After David
was served, he filled in the blanks on a preprinted “Request for Counsel,” which
stated that he was “a parent of the child named above.” David’s appointed
counsel thereafter filed a general denial that did not mention paternity.
Following the April 2007 status hearing, the trial court ordered a paternity test;
however, no paternity test results appear in the record. During the termination
16
trial, David testified that he is D.B.’s father, that he had raised D.B. from birth,
and that he remained the person responsible for D.B.; no contrary evidence was
admitted. At the end of the trial, the trial court took judicial notice, without
objection, that “there is a Certificate of Paternity Registry Search on file in this
case indicating that a diligent search of the Paternity Registry has been made,
and no notice of intent to claim paternity has been located concerning the child
the subject of this suit.”
Because David failed to challenge this ground on appeal, TDFPS requests
that we affirm the termination of his parental rights based solely on this ground.
See In re A.D., No. 04-02-00310-CV, 2002 WL 31829510, at *2 (Tex.
App.—San Antonio Dec. 18, 2002, no pet.) (not designated for publication)
(affirming termination because appellant, one of multiple alleged biological
fathers, failed to file an admission of paternity or counterclaim for paternity
under section 161.002(b)(1)). However, we question the applicability of
section 161.002 based on the factual background described above and based
on the limited case law addressing this issue. Therefore, in the interest of
justice and because we are required to strictly construe involuntary termination
statutes in favor of the parent, we will proceed to analyze the sufficiency of the
evidence to support the trial court’s other section 161.001 findings. See Holick
17
v. Smith, 685 S.W.2d 18, 20–21 (Tex. 1985); In re E.M.N., 221 S.W.3d 815,
820 (Tex. App.—Fort Worth 2007, no pet.).
B. Section 161.001 Findings
In his second through sixth points, David argues that there is legally and
factually insufficient evidence to prove that he violated section 161.001(1)(D)
and (E) and that termination is in D.B.’s best interest. TDFPS responds that the
evidence is legally and factually sufficient to support the trial court’s findings.
1. Standard of Review
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001 (Vernon
Supp. 2007); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must
be established; termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
18
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as 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.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
W e must also disregard all evidence that a reasonable fact-finder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
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We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the parent violated the environmental endangerment or
course of conduct endangerment provisions found in section 161.001(1)(D) and
(E) and that the termination of the parent’s parental rights would be in the best
interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of
the entire record, the disputed evidence that a reasonable fact-finder could not
have credited in favor of the finding is so significant that a fact-finder could not
reasonably have formed a firm belief or conviction in the truth of its finding,
then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
20
2. Endangerment Law and Analysis
Endangerment means to expose to loss or injury, to jeopardize. Boyd,
727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
To prove endangerment under subsection (D), TDFPS had to prove that David
(1) knowingly (2) placed or allowed D.B. to remain (3) in conditions or
surroundings that endangered his physical or emotional well-being. See T EX.
F AM. C ODE A NN. § 161.001(1)(D). Under section 161.001(1)(E), the relevant
inquiry is whether evidence exists that the endangerment of D.B.’s physical
well-being was the direct result of David’s conduct, including acts, omissions,
or failures to act. J.T.G., 121 S.W.3d at 125; see T EX. F AM. C ODE A NN. §
161.001(1)(E). Additionally, termination under section 161.001(1)(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. J.T.G., 121 S.W.3d at
125; see T EX. F AM. C ODE A NN. § 161.001(1)(E). However, it is not necessary
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). To determine whether
21
termination is necessary, courts may look to parental conduct occurring both
before and after the child’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex.
App.—Fort Worth 2001, no pet.).
Stability and permanence are paramount in the upbringing of children.
See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet.
denied). A fact-finder may infer from past conduct endangering the well-being
of the child that similar conduct will recur if the child is returned to the parent.
See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied),
disapproved on other grounds by J.F.C., 96 S.W.3d at 256, and C.H., 89
S.W.3d at 17. Drug use and its effect on a parent’s life and his ability to
parent may establish an endangering course of conduct. Dupree v. Tex. Dep’t
of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas
1995, no writ).
Evidence of criminal conduct, convictions, and imprisonment prior to the
birth of a child will support a finding that a parent engaged in a course of
conduct that endangered the child’s well-being. J.T.G., 121 S.W.3d at 133.
While imprisonment alone does not constitute a continuing course of conduct
that endangers the physical or emotional well-being of a child, it is a fact
properly considered on the issue of endangerment. Boyd, 727 S.W.2d at 533–
34; R.W., 129 S.W.3d at 743–44.
22
The record contains substantial evidence of subsection (D) environmental
endangerment and subsection (E) course of conduct endangerment to the
physical or emotional well-being of D.B. Because the evidence concerning
these two statutory grounds for termination is interrelated, we consolidate our
examination of it. See J.T.G., 121 S.W.3d at 126.
The record demonstrates that David had a history of illegal drug use.
David admitted that he had consistently used his bi-monthly paycheck to
purchase cocaine; he used cocaine approximately every two weeks after he
was paid. David acknowledged that it was not a smart decision for him to use
drugs while he was D.B.’s primary caretaker. In addition, David has a lengthy
criminal history, including over 160 arrests for charges such as robbery,
unauthorized use of a vehicle, failure to identify a fugitive from justice,
possession of a controlled substance, evading arrest, and forgery of his
mother’s checks, for which he was serving a one-year sentence in state jail at
the time of the trial. The record also demonstrates that David relied on others
to parent D.B., not just while he was in jail but also while he was out of jail,
and that the people whom he chose to watch D.B. often were not capable of
providing adequate care for D.B. For instance, David left D.B. with his diabetic
mother despite her poor health and inability to adequately care for herself.
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When David was told about Hodges’s decision to no longer care for D.B., David
responded that D.B. “might as well be left in [foster] care.”
We have carefully reviewed the entire record. Looking at the evidence in
the light most favorable to the trial court’s findings, giving due consideration to
evidence that the trial court, as fact-finder, could reasonably have found to be
clear and convincing, we hold that the court reasonably could have formed a
firm belief or conviction that David knowingly placed D.B. in conditions and
engaged in conduct that endangered D.B.’s physical or emotional well-being.
See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E); J.F.C., 96 S.W.3d at 265–66;
C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d at 124; In re T.J., No. 02-05-
00353-CV, 2006 WL 820518, at *6 (Tex. App.—Fort Worth Mar. 30, 2006,
no pet.) (mem. op.) (holding that mother’s and father’s criminal history and
illegal drug use provided sufficient basis to establish environmental
endangerment and course of conduct endangerment). Accordingly, we hold
that the evidence is legally and factually sufficient to support the trial court’s
finding on environmental endangerment and course of conduct endangerment.
We overrule David’s second, third, and fourth points.
3. Best Interest Law and Analysis
In his fifth and sixth points, David argues that the evidence is legally and
factually insufficient to support the trial court’s finding that termination of his
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parental rights was in D.B.’s best interest. TDFPS contends that the evidence
is legally and factually sufficient to support the trial court’s “best interest”
finding.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)
(Vernon 2002). There is also a strong presumption that keeping a child with
a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include: (1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future; (3) the
emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available
to assist these individuals to promote the best interest of the child; (6) the plans
for the child by these individuals or by the agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
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appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
Regarding the first factor, D.B. did not testify at trial. However, the
evidence demonstrated that David had not seen D.B. in almost two years and
that David had not sent D.B. any letters nor asked to receive photos of D.B.
while he was incarcerated.
Regarding the second factor—the child’s present and future physical and
emotional needs—Odelusi testified that D.B. had been moved from a basic
foster home to a therapeutic foster home to address his delayed developmental
issues, including his inability to speak, walk, smile, and attach well with others
and his problems with hoarding food. While in foster care, D.B. has received
occupational, physical, play, and speech therapies and has enrolled in a
preschool for children with disabilities.
The environmental endangerment and endangering course of conduct
discussion above addressed the third, fourth, and eighth factors—the present
and future physical and emotional dangers to D.B., as well as David’s parenting
abilities, or lack thereof, and his acts and omissions.
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Concerning the fifth factor, David attempted to better himself while in jail
by attending CHANGES, parenting classes, and drug and alcohol classes. After
he is released, he plans to get a job, get stable, and take the classes that he
needs to take to get his son back.
Regarding the party’s plans for the child—the sixth factor—David testified
that he is not in a position at this moment to care for D.B. because he is in jail.
TDFPS requested that David’s parental rights be terminated because of D.B.’s
disabilities, which were being treated in foster care, and because D.B. had
suffered from neglect and needed a stable place. Thus, TDFPS is actively
pursuing an adoptive placement for D.B.
Regarding the stability of the proposed placement—the seventh
factor—the evidence demonstrated that terminating David’s parental rights
would allow TDFPS to pursue adoptive placement for D.B., which would allow
him to have the stability that was lacking in his previous environment.
Finally, concerning the ninth factor—any excuse for the parent’s acts or
omissions—David admitted that he made mistakes and that he would attempt
to turn his life around once released from jail.
Looking at all of the evidence in the light most favorable to the best-
interest finding, we hold that a reasonable trier of fact could have formed a firm
belief or conviction that its finding was true. See J.F.C., 96 S.W.3d at 266;
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J.T.G., 121 S.W.3d at 124–25. Additionally, giving due consideration to
evidence that the fact-finder could have found to be clear and convincing, and
based on our review of the entire record, we hold that a reasonable trier of fact
could have formed a firm belief or conviction that termination of David’s
parental rights would be in the best interest of D.B. See In re W.E.C., 110
S.W.3d 231, 247 (Tex. App.—Fort Worth 2003, no pet.); In re S.M.L., 171
S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that
clear and convincing evidence existed that termination of father’s parental
rights was in child’s best interest where, among other factors, father was
incarcerated at time of termination hearing and had a pattern of criminal and
violent conduct). Accordingly, we hold that the evidence is legally and factually
sufficient to support the trial court’s best-interest finding. We overrule David’s
fifth and sixth points.
V. C ONCLUSION
Having overruled David’s six points, we affirm the trial court’s judgment
terminating his parental rights to D.B.
PER CURIAM
PANEL F: WALKER, GARDNER, and MCCOY, JJ.
DELIVERED: June 26, 2008
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