in the Interest of A.N. and A.N., Children ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00036-CV
___________________________
IN THE INTEREST OF A.N. AND A.N., CHILDREN
On Appeal from the 322nd District Court
Tarrant County, Texas
Trial Court No. 322-678457-20
Before Sudderth, C.J.; Wallach and Walker, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant O.J. (Mother) appeals the termination of her parental rights to her
twin girls, A.N. and A.N. (the Twins).1 The trial court found that Mother had violated
four statutory predicate grounds for termination,2 and although Mother acknowledges
that the evidence supports two of those predicate grounds, she challenges the legal
and factual sufficiency of the other two: the two endangerment predicate grounds.
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). Because we conclude that there is
sufficient evidence that Mother endangered the Twins’ well-being through her course
of conduct—her ongoing drug habit, her failure to complete the court-ordered
treatment programs and service plan, and her inconsistent visitation—we will affirm
the trial court’s conduct-based endangerment finding and its termination order.
I. Standard of Review
When reviewing the sufficiency of the evidence to support a termination
finding, we ask whether a reasonable factfinder could have formed a firm belief or
1
The trial court also terminated the parental rights of the Twins’ father, but he
does not appeal.
2
The trial court found that Mother had “knowingly placed or knowingly
allowed the [Twins] to remain in conditions or surroundings which endanger[ed]
the[ir] physical or emotional well-being”; “engaged in conduct or knowingly placed
the [Twins] with persons who engaged in conduct which endanger[ed] the[ir] physical
or emotional well-being”; “constructively abandoned the [Twins]”; and “failed to
comply with the provisions of [the] court order that specifically established the actions
necessary for [Mother] to obtain the return of the [Twins].” See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E), (N), (O).
2
conviction that the finding was true. In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020); In re
A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). Both legal and factual sufficiency turn on
this question; the distinction between the two sufficiency analyses “lies in the extent
to which disputed evidence contrary to [the] finding may be considered” in answering
the question. A.C., 560 S.W.3d at 630.
In our legal sufficiency analysis, we “look at all the evidence in the light most
favorable to the finding,” assuming that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could have done so and disregarding all
evidence that a reasonable factfinder could have disbelieved. Z.N., 602 S.W.3d at 545
(quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); A.C., 560 S.W.3d at 630–31.
“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to
the finding against all the evidence favoring the finding” to determine if “in light of
the entire record, the disputed evidence a reasonable factfinder could not have
credited in favor of a finding is so significant that the factfinder could not have
formed a firm belief or conviction that the finding was true.” A.C., 560 S.W.3d at
630–31; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“When the factual
sufficiency of the evidence is challenged, only then is disputed or conflicting evidence
under review.”).
There is overlap between the legal and factual sufficiency determinations; if the
evidence is factually sufficient, it is necessarily legally sufficient. In re A.O., No. 02-21-
00376-CV, 2022 WL 1257384, at *8 (Tex. App.—Fort Worth Apr. 28, 2022, no pet.
3
h.) (mem. op.); In re A.S., No. 02-16-00076-CV, 2016 WL 3364838, at *7 (Tex.
App.—Fort Worth June 16, 2016, no pet.) (mem. op.). Therefore, and because
Mother challenges both legal and factual sufficiency, we will conduct a consolidated
review. See A.O., 2022 WL 1257384, at *8 (doing similarly).
II. Discussion
To terminate a parent–child relationship, the Department must offer legally
and factually sufficient clear and convincing evidence to prove two elements: (1) that
the parent’s actions satisfy at least one statutory predicate ground listed in Family
Code Section 161.001(b)(1) and (2) that termination is in the child’s best interest.
Tex. Fam. Code Ann. §§ 161.001(b)(1), (b)(2), .206(a), (a–1); In re J.F.-G., 627 S.W.3d
304, 312 (Tex. 2021); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). The trial court found
that Mother’s actions satisfied four statutory predicate grounds and that termination
was in the Twins’ best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M),
(O), (b)(2). Mother challenges two of the four predicate grounds; she does not
challenge the other two, nor does she challenge the best interest finding. Generally,
“[t]o affirm a termination judgment on appeal, a court need uphold only one
[predicate] termination ground,” plus the best interest finding. In re N.G., 577 S.W.3d
230, 232 (Tex. 2019). The disposition of the appeal is thus not at issue—the
termination of Mother’s parental rights to the Twins can be upheld on either of the
unchallenged predicate grounds.
4
Normally, we would stop there. See Tex. R. App. P. 47.1. But the two
predicate grounds that Mother challenges involve her endangerment of the Twins by
their environment and by her conduct in violation of Subsections (D) and (E) of
Section 161.001(b)(1). Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). Because such
endangerment findings can serve as predicate grounds for terminating Mother’s
parental rights to other children, see id. § 161.001(b)(1)(M), and because Mother’s
“fundamental liberty interest at stake outweighs the [S]tate’s interest in deciding only
what is necessary for final disposition of the appeal,” N.G., 577 S.W.3d at 237, we
must address at least one of the two challenged endangerment findings, even though
the findings may not be dispositive. In re C.W., No. 02-21-00252-CV, 2022 WL
123221, at *3 n.5 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.) (mem. op.); In re
J.B., No. 02-21-00239-CV, 2021 WL 6144074, at *20 (Tex. App.—Fort Worth Dec.
30, 2021, no pet. h.) (mem. op.) (similar). Addressing both (D) and (E) is not
necessary, though, unless neither withstands appellate review. Affirming one renders
the other moot. C.W., 2022 WL 123221, at *3 n.5; In re E.C., No. 02-20-00022-CV,
2020 WL 2071755, at *5 (Tex. App.—Fort Worth Apr. 30, 2020, no pet.) (mem. op.);
In re T.C., No. 02-19-00291-CV, 2019 WL 6606172, at *1 n.3 (Tex. App.—Fort Worth
Dec. 5, 2019, pet. denied) (mem. op.).
Here, we need only address one: Subsection (E), the conduct-based
endangerment finding, withstands appellate review. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(E).
5
A. The Law on Conduct-Based Endangerment
Subsection (E) requires a finding that the parent “engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endanger[ed]
the physical or emotional well-being of the child.” Id. To “‘[e]ndanger’ 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); A.O., 2022 WL 1257384, at *8; J.B., 2021 WL 6144074, at *21.
Conduct-based endangerment under Subsection (E) requires more than a
“single act or omission”; it requires a “voluntary, deliberate, and conscious course of
conduct.” J.B., 2021 WL 6144074, at *21; In re R.H., No. 02-20-00396-CV, 2021 WL
2006038, at *13 (Tex. App.—Fort Worth May 20, 2021, no pet.) (mem. op.). As a
course of conduct, evidence of endangerment under Subsection (E) “is not limited to
actions directed towards the child,” J.F.-G., 627 S.W.3d at 315 n.43 (quoting J.O.A.,
283 S.W.3d at 345), and may include “actions before the child’s birth, actions while
the child is not in the parent’s presence, and actions while the child is in the
Department’s custody.” See In re C.Y., No. 02-21-00261-CV, 2022 WL 500028, at *2
(Tex. App.—Fort Worth Feb. 18, 2022, no pet.) (mem. op.). “[S]uch actions may
‘create an inference that similar conduct could recur and further jeopardize a child’s
well-being.’” Id. (quoting In re M.W., No. 02-21-00146-CV, 2021 WL 3679247, at *4
(Tex. App.—Fort Worth Aug. 19, 2021, pet. denied) (mem. op.)).
6
B. The Evidence of Mother’s Conduct-Based Endangerment
The Department presented evidence that Mother’s course of conduct—her
drug habit, failure to complete her court-ordered treatment programs and service
plan, and failure to consistently visit the Twins—endangered the Twins’ well-being.
1. Drug Habit
Mother’s drug habit was the primary component of her endangering conduct.
Mother admitted to the Department that she had a history of cocaine and marijuana
use and that because of her drug use, the Department had already placed Mother’s
four other children with relatives. She tested positive for marijuana while she was
pregnant with the Twins. Mother admitted that she had used marijuana during her
pregnancy, but she claimed that the marijuana use had occurred before she actually
knew that she was pregnant.3 “Illegal drug use during pregnancy can support a charge
that the mother has engaged in conduct that endangers the physical and emotional
welfare of the child.” In re M.B., No. 02-15-00128-CV, 2015 WL 4380868, at *12
(Tex. App.—Fort Worth July 16, 2015, no pet.) (mem. op.); see M.W., 2021 WL
3679247, at *5 (affirming Subsection (E) finding based in part on evidence that
mother had “admitted to taking controlled substances while pregnant” and that the
baby had tested positive for drugs at birth).
3
The Twins were born in November 2019 and spent the first month of their
lives in the NICU, although there was no evidence as to why. By early December, the
hospital had referred Mother’s case to the Department. The Twins were removed
from Mother’s care in March 2020.
7
Mother argues, though, that there is no evidence that she “knowingly”
endangered the Twins because she told the Department that she had “stopped using
marijuana when she learned she was pregnant.” But “[s]cienter is not required for an
appellant’s own acts [to constitute endangerment] under [S]ection 161.001(b)(1)(E).”
A.O., 2022 WL 1257384, at *11 (quoting In re I.D.G., 579 S.W.3d 842, 851 (Tex.
App.—El Paso 2019, pet. denied) (op. on reh’g)); see In re M.N.G., 147 S.W.3d 521,
536 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g) (noting that “scienter
is . . . required under [S]ubsection (E) [only] when a parent places the child with
others who engage in an endangering course of conduct”). Moreover, the trial court
was not required to believe Mother’s statement to the Department that she had
stopped using marijuana when she learned that she was pregnant. Cf. In re J.P.B., 180
S.W.3d 570, 573–74 (Tex. 2005) (reiterating that the appellate court must defer to the
factfinder’s reasonable determination of credibility issues, and noting that the
factfinder could have disbelieved the father’s testimony “that he did not know how
[his child] was injured”); In re C.W., No. 02-21-00340-CV, 2022 WL 1155908, at *2
n.2 (Tex. App.—Fort Worth Apr. 19, 2022, pet. filed) (mem. op.) (noting that
determining “[w]hom to believe . . . was the jurors’ prerogative”).
And a reasonable factfinder could have doubted Mother’s alleged abstention
from marijuana, given that Mother’s continued use of drugs after the Twins’ birth
contributed to their emergency removal. Mother tested positive for marijuana only a
month after the Twins were born, while they were still in her care. And although
8
Mother told the Department that she would stop using drugs and submit to drug
tests, she refused many of the subsequently requested drug tests, and when she finally
relented, she tested positive for a concoction of marijuana and other drugs: cocaine,
opiates, and oxycodone. At that time, the Twins were approximately three months
old, and Mother was already on a pre-removal Department plan that limited her
contact with the Twins due to her ongoing drug habit. Whether the factfinder viewed
these post-birth test results as a return to drugs after a brief reprieve during pregnancy
(as Mother claims) or as a demonstration that Mother’s drug habit had never ceased
(as the trial court was entitled to believe), the tests confirmed that she was on drugs
when she was or should have been caring for the infant Twins.4 See In re C.W., No.
02-14-00274-CV, 2014 WL 7139645, at *5 (Tex. App.—Fort Worth Dec. 12, 2014, no
pet.) (mem. op.) (rejecting argument that evidence of Subsection (E) was insufficient
when parent claimed that she had stopped using drugs when she became aware of her
pregnancy but she tested positive for drugs after child’s birth and admitted using
drugs after removal).
Mother acknowledges that there was evidence of her drug use both before and
after the Twins’ birth, but she contends that there was no evidence connecting her
drug use to any actual danger. Her argument appears to equate Subsection (E)
endangerment with actual injury, though. A course of conduct that “expose[d]” the
Although the Twins were at breastfeeding age, there is no evidence as to
4
whether Mother breastfed the Twins while she was on drugs.
9
Twins “to loss or injury” is sufficient to satisfy Subsection (E)—“it is not necessary
that . . . the child[ren] actually suffer[ed] injury.” Boyd, 727 S.W.2d at 533. Mother’s
“drug use while pregnant endangered [the Twins] because [they] w[ere] exposed to the
possibility of being born with adverse medical conditions.” In re M.D.V., No. 14-04-
00463-CV, 2005 WL 2787006, at *3 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005,
no pet.) (mem. op.) (holding similarly when child was born with marijuana in her
system but parent argued that there was no evidence of a resulting medical condition).
We are not willing to entertain the premise “that there is some level of drug use while
pregnant that is acceptable or harmless to the child.” C.W., 2014 WL 7139645, at *5
(affirming Subsection (E) finding and rejecting premise). And because “[n]arcotics
can impair or incapacitate the user’s ability to parent,” In re M.M., No. 02-21-00185-
CV, 2021 WL 5227177, at *6 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.) (mem.
op.), Mother’s “use of a mind-altering, illegal substance while [she was or should have
been] caring for [the Twins] jeopardized or exposed [them] to loss or injury.”
M.D.V., 2005 WL 2787006, at *4 (rejecting similar argument that there was “no
evidence of how [the parent’s] drug use while caring for her children endangered
them”); see In re A.D.A., No. 13-21-00229-CV, 2022 WL 89186, at *7 (Tex. App.—
Corpus Christi–Edinburg Jan. 10, 2022, no pet.) (mem. op.) (recognizing that drug use
“exposes the child to the possibility that the parent may be impaired or imprisoned”
(quoting In re D.J.W., 394 S.W.3d 210, 221 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied)); In re M.M., No. 2-08-029-CV, 2008 WL 5195353, at *7 (Tex. App.—Fort
10
Worth Dec. 11, 2008, no pet.) (mem. op.) (affirming Subsection (E) finding based in
part on evidence that the parent “admitted that she had used drugs . . . and had cared
for [her child] while she had drugs in her system”).
Plus, even after the Twins were removed and Mother was ordered by the trial
court not to use drugs as a condition of the Twins’ return, Mother did not stay clean.
In May 2020, when the Twins were approximately six months old and Mother’s
termination case was already pending, Mother tested positive for cocaine and
marijuana. And when the Department scheduled Mother for additional drug testing
in September 2020, Mother refused to submit to the test, allowing the trial court to
reasonably infer “that [she] was avoiding testing because [she] was using drugs.” C.Y.,
2022 WL 500028, at *4 (quoting In re J.W., No. 2-08-211-CV, 2009 WL 806865, at *4
(Tex. App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.), and applying similar
inference where mother repeatedly refused drug tests). “[A] parent’s decision to
engage in illegal drug use during the pendency of a termination suit, when the parent
is at risk of losing a child, supports a finding [of endangering conduct].”5 Id. at *3(quoting In re J.G., No. 02-21-00257-CV, 2022 WL 187983, at *9 (Tex. App.—Fort
Worth Jan. 20, 2022, no pet.) (mem. op.)); In re C.S.L.E.H., No. 02-10-00475-CV,
2011 WL 3795226, at *5 (Tex. App.—Fort Worth Aug. 25, 2011, no pet.) (mem. op.)
5
“We do not hold or imply that drug use, standing alone, automatically
demonstrates endangering conduct.” C.Y., 2022 WL 500028, at *4 n.10 (citing In re
L.C.L., 629 S.W.3d 909, 909–11 (Tex. 2021) (Lehrmann, J., concurring)).
11
(similar); see M.M., 2021 WL 5227177, at *6 (affirming Subsection (E) finding based in
part on evidence that mother “used illegal drugs even though she knew that her
parental rights were in jeopardy, and after the . . . agreed orders, she used again”).
2. Failure to Complete Treatment Programs and Service Plan
Mother also failed to complete the court-ordered drug treatment programs that
could have helped address her habit. She completed a drug assessment and was
referred to MHMR for drug education, but she attended only “a few classes” before
stopping. See C.Y., 2022 WL 500028, at *5 (affirming Subsection (E) finding based in
part on parent’s failure to attend or complete drug treatment programs); M.W., 2021
WL 3679247, at *5 (affirming Subsection (E) finding based in part on evidence that
the mother “was a longtime drug addict” and “was unable to stay clean”). And
Mother’s caseworker testified that, apart from the drug assessment, Mother did not
show completion of any of the other court-ordered services outlined in her service
plan as conditions for the Twins’ return.6 She was required, for example, to attend
individual counseling, but she did not do so.
6
In March 2020, when the trial court appointed the Department as the
temporary managing conservator of the Twins, the court issued a temporary order
that required Mother to “comply with each requirement set out in the Department’s
original, or any amended, service plan during the pendency of this suit.” The order
expressly warned that compliance with the service plan was “necessary to obtain the
return of the children” and that “failure to fully comply . . . may result in the
restriction or termination of parental rights.” [Capitalization altered.] Although
Mother’s service plan was not admitted into evidence at trial, it was part of the trial
court’s file. See In re J.E.H., 384 S.W.3d 864, 869–70 (Tex. App.—San Antonio 2012,
no pet.) (stating that the trial court cannot take judicial notice of the truth of
12
Mother does not appear to dispute that she failed to complete her court-
ordered service plan. In fact, one of the unchallenged predicate grounds supporting
the trial court’s judgment is a finding under Subsection (O) that Mother “failed to
comply with the provisions of a court order [incorporating the service plan] that
specifically established the actions necessary for the mother to obtain the return of the
children who have been in the permanent or temporary managing conservatorship of
the Department.” According to Mother’s caseworker, Mother said that she “didn’t
have time” to participate in the court-ordered services. The trial court could
“consider [Mother’s] failure to complete [her] service plan as part of its endangering-
conduct analysis.” J.G., 2022 WL 187983, at *9 (affirming Subsection (E) finding
based in part on the father’s “fail[ure] to complete most of the services in his service
plan”).
3. Failure to Attend Visitation
Mother’s lapses extended to her visitations as well. She was offered weekly
visitations with the Twins, and although she participated in Zoom visitations in May
2020, her participation fell off when the Department returned to in-person visitations
in June. After that, she stopped attending or even scheduling visits for months at a
allegations but can “take judicial notice that it signed an order adopting the family
service plan and what the plan listed as the necessary requirements” for the parent to
regain custody, and if record is silent, “the trial court may be presumed to have taken
judicial notice of the records in the court’s file without any request being made and
without an announcement in the record that it has done so”).
13
time. Mother saw the Twins in person in June 2020, but she did not see them again
until a virtual visitation three months later in September 2020. Then she allowed
another six months to elapse before attending a visitation in March 2021. By the time
of Mother’s termination trial in October 2021, the Twins were less than three years
old, and Mother had not visited them for the preceding ten months of their lives.
A parent’s inconsistent visitation “can be very damaging” to a child, and “can
emotionally endanger a child’s well-being, supporting termination under [S]ubsection
(E).” D.L.G. v. Tex. Dep’t of Fam. & Protective Servs., Nos. 03-20-00314-CV, 03-20-
00315-CV, 2020 WL 6789208, at *5 (Tex. App.—Austin Nov. 19, 2020, no pet.)
(mem. op.); In re S.I.H., No. 02-11-00489-CV, 2012 WL 858643, at *6 (Tex. App.—
Fort Worth Mar. 15, 2012, no pet.) (mem. op.) (affirming Subsection (E) finding and
quoting expert testimony regarding the impact of a parent’s lack of consistent contact
with the child). “Mother’s inconsistent attendance at her scheduled visitations with
[the Twins thus] lends further support to the trial court’s finding of endangering
conduct.” C.Y., 2022 WL 500028, at *6 (affirming Subsection (E) finding based in
part on mother’s inconsistent attendance at visitations); see J.G., 2022 WL 187983, at
*9 (affirming Subsection (E) finding based in part on the father’s failure “to attend
visitations or check on his children’s well-being”).
III. Conclusion
Whether we view the record in a light most favorable to the Subsection (E)
finding or weigh the disputed evidence for and against the finding, see A.C., 560
14
S.W.3d at 630–31, a reasonable factfinder could have concluded that Mother had
engaged in a course of conduct that had endangered the Twins’ physical or emotional
well-being.7 See Tex. Fam. Code Ann. § 161.001(b)(1)(E). The Department presented
evidence that Mother had used drugs before, during, and after her pregnancy with the
Twins, that she had failed to complete her court-ordered treatment programs and
service plan, and that she had failed to consistently visit the Twins for a significant
portion of their lives. Cf. C.W., 2014 WL 7139645, at *6 (affirming Subsection (E)
finding based in part on evidence “that [the m]other used drugs while pregnant with
[the child], continued to use drugs after his removal, failed to use the formal recovery
programs offered to her, and denied that she needed help addressing her drug use”).
Accordingly, we hold the evidence is legally and factually sufficient to support
the trial court’s Subsection (E) finding, and we affirm the trial court’s order
terminating Mother’s parental rights to the Twins. Tex. R. App. P. 43.2(a); see Tex.
Fam. Code Ann. § 161.001(b)(1)(E).
7
Mother also challenges aspects of the evidence related to the Twins’ abusive
father. Mother claims that the evidence of such abuse was “largely conclusory” and
that there was no evidence as to the frequency of the violence. But Mother’s
caseworker testified that Mother admitted having been assaulted by the Twins’ father
on at least one occasion, and Mother does not cite any case law to support her implied
contention that domestic violence exposes children to harm only if the violence
occurs at a certain frequency. Regardless, even without the evidence of domestic
violence, there was sufficient evidence to support the trial court’s Subsection (E)
finding.
15
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: June 9, 2022
16