in the Interest of B.B., a Child ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00051-CV
IN THE INTEREST OF B.B., A CHILD
On Appeal from the County Court at Law
Lamar County, Texas
Trial Court No. 90406
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
The Department of Family and Protective Services filed a petition to terminate Mother’s
and Father’s parental rights after both B.B. and Mother tested positive for methamphetamine at
B.B.’s birth.1 After a bench trial, the trial court found that Mother and Father (1) knowingly
placed or allowed B.B. to remain in conditions or surroundings that endangered her physical or
emotional well-being, (2) engaged in conduct or knowingly placed B.B. with persons who
engaged in conduct that endangered her physical or emotional well-being, (3) constructively
abandoned B.B., (4) failed to comply with the provisions of a court order that specifically
established the actions necessary for B.B.’s return, and (5) used a controlled substance in a
manner that endangered B.B.’s health or safety. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),
(E), (N), (O), (P). The trial court also found that Father knowingly engaged in criminal conduct
that resulted in a conviction and confinement or imprisonment and inability to care for B.B. for
not less than two years from the date of the Department’s petition. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(Q). After determining that it was in B.B.’s best interests, the trial court
terminated Mother’s and Father’s parental rights to B.B. See TEX. FAM. CODE ANN.
§ 161.001(b)(2).
On appeal, Father2 argues that the evidence is legally and factually insufficient to support
the trial court’s findings that there were statutory grounds to terminate his parental rights.3
1
We use initials to protect the identity of the child and refer to her parents as Mother and Father. See TEX. R. APP. P.
9.8.
2
Mother did not appeal the termination of her parental rights to B.B.
3
Father does not challenge the trial court’s best-interest finding.
2
Because Father failed to challenge the trial court’s statutory Ground Q finding and sufficient
evidence supported the trial court’s finding under Ground E, we overrule Father’s point of error
and affirm the trial court’s judgment terminating his parental rights.
I. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to
“engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to
support the termination of parental rights.” Id. (quoting In re A.B., 437 S.W.3d at 500).
“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (quoting
In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick,
685 S.W.2d at 20)).
“In order to terminate parental rights, the trial court must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re
E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of
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the allegations sought to be established.’” Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing
In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). “This standard of proof necessarily affects our
review of the evidence.” Id.“In our legal sufficiency review, we consider all the evidence in the light most favorable
to the findings to determine whether the fact-finder reasonably could have formed a firm belief
or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920
(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We
assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a
reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have
reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re
J.P.B., 180 S.W.3d at 573).
“In our review of factual sufficiency, we give due consideration to evidence the trial
court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder
reasonably could have found to be clear and convincing and determine ‘whether the evidence is
such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the
. . . allegations.’” Id. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 108 (quoting
In re C.H., 89 S.W.3d 17, 25 (Tex. 2002))); In re J.F.C., 96 S.W.3d 256, 264, 266 (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
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have formed a firm belief or conviction, then the evidence is factually insufficient.” Id. (quoting
In re J.F.C., 96 S.W.3d at 266). “‘[I]n making this determination,’ we must undertake ‘an
exacting review of the entire record with a healthy regard for the constitutional interests at
stake.’” Id. (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H., 89
S.W.3d at 26)). “We also recognize that the trial court, as the fact-finder, is the sole arbiter of a
witness’ demeanor and credibility, and it may believe all, part, or none of a witness’ testimony.”
In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at *3 (Tex. App.—Texarkana June 22,
2018, pet. denied) (mem. op.) (citing In re H.R.M., 209 S.W.3d at 109).
“Despite the profound constitutional interests at stake in a proceeding to terminate
parental rights, ‘the rights of natural parents are not absolute; protection of the child is
paramount.’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.
2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))) (citing In re M.S., 115 S.W.3d
534, 547 (Tex. 2003)). “A child’s emotional and physical interests must not be sacrificed merely
to preserve parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—
Texarkana 2015, no pet.) (citing In re C.H., 89 S.W.3d at 26)).
II. Unchallenged Ground Q Finding Supports Termination of Father’s Parental Rights
“Only one predicate finding under Section 161.001[b](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best
interest.” Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet.
denied) (quoting In re A.V., 113 S.W.3d at 362) (citing In re K.W., 335 S.W.3d 767, 769 (Tex.
App.—Texarkana 2011, no pet.))).
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Father asserts that the evidence is legally and factually insufficient to support the trial
court’s findings under Grounds D, E, N, O, and P, but his brief wholly fails to challenge the trial
court’s Ground Q finding. When the trial court makes findings that multiple statutory grounds
support termination of parental rights and the appellant does not challenge all statutory grounds
found, we will affirm the trial court’s termination order based on the unchallenged statutory
ground if the trial court’s best-interest finding is also unchallenged. See In re A.G.-U., No. 06-
17-00078-CV, 2017 WL 5473766, at *1 (Tex. App.—Texarkana Nov. 15, 2017, no pet.) (mem.
op.) (order terminating parental rights affirmed when parent did not challenge trial court’s
findings on one statutory ground and best interest); B.H.-L v. Tex. Dep’t of Fam. & Protective
Servs., No. 03-17-00772-CV, 2018 WL 1278720, at *1–2 (Tex. App.—Austin Mar. 13, 2016, no
pet.) (mem. op.) (same).
Based on the unchallenged Ground Q and best-interest findings, we overrule Father’s
point of error and affirm the termination of Father’s parental rights to B.B.
III. We Must Still Conduct a Due Process Review of Ground D or E
Even so, when the trial court’s findings under Grounds D or E are challenged on appeal,
due process demands that we review the evidence supporting the finding under at least one of
those grounds. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (“We hold that
due process and due course of law requirements mandate that an appellate court detail its
analysis for an appeal of termination of parental rights under [S]ection 161.001(b)(1)(D) or (E)
of the Family Code.”). This is because termination of parental rights under these grounds may
implicate the parent’s parental rights to other children. Id. at 234; see TEX. FAM. CODE
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ANN. § 161.001(b)(1)(M) (providing as a ground for termination of parental rights that the parent
“had his or her parent-child relationship terminated with respect to another child based on a
finding that the parent’s conduct was in violation of Paragraph (D) or (E)”).
A. Requirements Under Ground E
Ground E permits the termination of a parent’s parental rights “if the court finds by clear
and convincing evidence . . . that the parent has . . . engaged in conduct . . . which endangers the
physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
Endanger “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). “‘Endanger’ means
to expose to loss or injury; to jeopardize.” Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987); In re L.E.S., 471 S.W.3d at 923; In re N.S.G., 235 S.W.3d 358, 367 (Tex.
App.—Texarkana 2007, no pet.). “It is not necessary that the conduct be directed at the
child[ren] or that the child[ren] actually suffer injury.” In re L.E.S., 471 S.W.3d at 923. Under
Ground “(E), it is sufficient that the child[ren]’s well-being is jeopardized or exposed to loss or
injury.” Id. (citing Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367).
“Further, termination under [Ground] (E) must be based on more than a single act or
omission. Instead, a ‘voluntary, deliberate, and conscious course of conduct by the parent is
required.’” Id. (quoting Perez v. Tex. Dep’t of Protective & Regul. Servs., 148 S.W.3d 427, 436
(Tex. App.—El Paso 2004, no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—
Eastland 1999, no pet.))); see Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366–67.
Ground E “refers only to the parent’s conduct, as evidenced not only by the parent’s acts, but
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also by the parent’s omissions or failures to act.” In re M.C., 482 S.W.3d 675, 685 (Tex. App.—
Texarkana 2016, pet. denied) (quoting In re N.S.G., 235 S.W.3d at 366–67). “The conduct to be
examined includes what the parent did both before and after the child was born.” Id. at 685
(quoting In re N.S.G., 235 S.W.3d at 367). “The endangering conduct may also occur ‘either
before or after the child’s removal by the Department.’” In re S.A.W., No. 06-21-00116-CV,
2022 WL 1193667, at *4 (Tex. App.—Texarkana Apr. 22, 2022, pet. denied) (mem. op.)
(quoting In re Z.J., No. 02-19-00118-CV, 2019 WL 6205252, at *11 (Tex. App.—Fort Worth
Nov. 21, 2019, pet. denied) (mem. op.) (citing Walker v. Tex. Dep’t of Fam. & Protective Servs.,
312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied))).
B. The Evidence at Trial
B.B., who was born on June 4, 2021, was one year old at the time of trial. Brittany Allen,
the Department’s caseworker, testified that Father admitted to using methamphetamine daily.
Allen testified, and admitted drug test results showed, that Father tested positive for
methamphetamine and amphetamine four days after B.B.’s birth. According to Allen, Father
was incarcerated shortly after B.B.’s birth and remained incarcerated during the pendency of the
case. Allen also testified that Father reported being in a gang that called him “Tow Chain.”
The record showed that Father, who was thirty-six, had a prior criminal history. Allen
testified that Father was convicted of sexual assault of a child. Judgments of conviction against
Father showed that he was previously convicted of two counts of failing to register as a sex
offender, as well as two counts of unauthorized use of a motor vehicle, one count of possession
of cocaine, two counts of forgery, and several misdemeanor offenses.
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Father’s criminal history after B.B.’s birth was also significant. Judgments of conviction
introduced by the Department showed that Father pled guilty to, and was convicted of, two
counts of possession of a penalty group 1 controlled substance and two counts of bail jumping
and failure to appear. Pursuant to a plea bargain agreement with the State, on July 15, 2021,
Father received a sentence of six years’ imprisonment for those offenses. On July 26, 2021,
Father also pled guilty to theft of property valued at $750.00 or more, but less than $2,500.00,
and was incarcerated for twelve months. Allen’s testimony, and an admitted judgment of
conviction, showed that Father was convicted of family violence assault on July 29 after he pled
guilty to the offense.
After hearing this evidence, the trial court found that Father had engaged in conduct that
endangered B.B.’s physical or emotional well-being.
C. Sufficient Evidence Supported the Ground E Finding
The evidence at trial focused on Father’s drug use and incarceration. “Drug use and its
effect on a parent’s life and his ability to parent may establish an endangering course of
conduct.” In re J.L.B., 349 S.W.3d at 848 (quoting In re N.S.G., 235 S.W.3d at 368); see In re
J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009); In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco
2008, no pet.) (“Evidence of illegal drug use or alcohol abuse by a parent is often cited as
conduct which will support an affirmative finding that the parent has engaged in a course of
conduct which has the effect of endangering the child.”). Also, “imprisonment is certainly a
factor to be considered by the trial court on the issue of endangerment” under Ground E. In re
N.S.G., 235 S.W.3d at 367 (quoting Boyd, 727 S.W.2d at 533). This is because “[a] parent’s
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criminal history—taking into account the nature of the crimes, the duration of incarceration, and
whether a pattern of escalating, repeated convictions exists—can support a finding of
endangerment.” In re J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021).
The evidence at trial showed that, after B.B.’s birth, Father admitted that he used
methamphetamine daily. “‘Because it exposes the child to the possibility that the parent may be
impaired or imprisoned, illegal drug use may support termination under’ Ground E.” In re
H.M.J., No. 06-18-00009-CV, 2018 WL 3028980, at *5 (Tex. App.—Texarkana June 19, 2018,
no pet.) (mem. op.) (quoting In re A.L., No. 06-14-00050-CV, 2014 WL 5204888, at *7 (Tex.
App.—Texarkana Oct. 8, 2014, no pet.) (mem. op.) (quoting Walker, 312 S.W.3d at 617)). Here,
Father was convicted after B.B.’s birth for possessing controlled substances while Mother was
pregnant with B.B., including just nine days before B.B.’s birth.
“A parent’s failure to remain drug-free while under the Department’s supervision will
support a finding of endangering conduct under [Ground] (E) even if there is no direct evidence
that the parent’s drug use actually injured the child.” In re H.M.J., 2018 WL 3028980, at *5
(quoting In re J.A.W., No. 02-08-215-CV, 2009 WL 579287, at *4 (Tex. App.—Fort Worth
Mar. 5, 2009, no pet.) (per curiam) (mem. op.) (citing Vasquez v. Tex. Dep’t of Protective &
Regul. Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)). Four
days after B.B.’s birth, and one day after the Department’s petition was filed, Father tested
positive for methamphetamine and amphetamine. His admitted daily habit reasonably led the
fact-finder to conclude that he would not be responsible enough to care for B.B.
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An offense committed by a parent before the birth of the parent’s child “can be a relevant
factor in establishing an endangering course of conduct.” In re E.N.C., 384 S.W.3d at 804–05.
Also, conduct that demonstrates “[d]omestic violence, want of self-control, and propensity for
violence may be considered as evidence of endangerment.” In re J.A.W., No. 06-09-00068-CV,
2010 WL 1236432, at *4 (Tex. App.—Texarkana Apr. 1, 2010, pet. denied); see E.E. v. Tex.
Dep’t of Fam. & Protective Servs., 598 S.W.3d 389, 405 (Tex. App.—Austin 2020, no pet.).
The evidence showed that Father had a lengthy criminal history before B.B.’s birth, including
sexual assault of a child and, more recently, family violence assault.
In addition to committing criminal offenses before B.B.’s birth, Father committed the
offense of bail jumping after B.B.’s birth. His pleas of guilty on July 15, 26, and 29, 2021, to
several offenses committed after B.B.’s birth led to Father’s imprisonment for up to six years.
Father’s imprisonment removed his ability to parent newborn B.B. and exposed her to the loss of
a caretaker, subjecting her to a life of uncertainty and instability if Father’s parental rights were
not terminated. An examination of all of Father’s criminal offenses showed that Father engaged
in more serious crimes as time passed, received his heaviest sentence after B.B.’s birth, and
reported that he was a gang member.
Despite that evidence, Father argues that it is insufficient because he was “incarcerated
for practically all of the Child’s life.” That fact, however, weighs against Father because a fact-
finder may “infer that a parent’s lack of contact with the child and absence from the child’s life
endangers the child’s emotional well-being.” E.E., 598 S.W.3d at 405–06; In re U.P., 105
S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied), overruled in part on
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other grounds by In re L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th Dist.] 2020, pet.
denied) (concluding that parent’s criminal conduct, which resulted in the parent’s imprisonment
and absence from child’s life, created an “emotional vacuum” in the child’s life that endangered
the child’s well-being).
A long history of irresponsible choices is probative evidence that a parent has engaged in
conduct that has endangered a child. See In re J.O.A., 283 S.W.3d at 346. From the above-
recited evidence, we find that the trial court could have formed a firm belief or conviction that
Father’s life choices, including his pattern of knowingly engaging in illegal activity, left him
unable to care for B.B. and constituted a pattern of conduct inconsistent with the very idea of
childrearing. Because the record firmly established that Father engaged in conduct that
endangered B.B.’s physical and emotional well-being, we find that legally and factually
sufficient evidence supported the trial court’s finding under Ground E.4
IV. Conclusion
We affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: October 10, 2022
Date Decided: October 19, 2022
4
Since there was sufficient evidence supporting the trial court’s finding under Grounds Q and E, we need not review
its findings under the remaining grounds. See J.T. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-21-00070-CV,
2021 WL 2672055, at *9 (Tex. App.—Austin June 30, 2021, no pet.) (mem. op.); In re M.F., No. 14-19-00964-CV,
2020 WL 2832166, at *8 (Tex. App.—Houston [14th Dist.] May 28, 2020, pet. denied) (mem. op.).
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