in the Interest of P.W., a Child v. Texas Department of Family and Protective Services

Affirmed and Majority and Concurring Opinions filed June 4, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-01070-CV
IN THE INTEREST OF P.W., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2017-05035J
MAJORITY OPINION
In this accelerated appeal in a termination-of-parental-rights case, we
consider as an issue of apparent first impression whether a parent may get review
of the sufficiency of the evidence to support the trial court’s findings under
subsections (D) and (E) of Family Code section 161.001(b)(1), even though the
parent does not challenge either the trial court’s finding under another subsection
of section 161.001(b)(1) or the trial court’s finding that termination of the parent’s
parental rights is in the child’s best interest. Based on recent cases from the
Supreme Court of Texas, we must determine whether the appellant’s challenge to
the subsection (D) and subsection (E) findings has merit and detail our analysis,
even if another finding that is listed in the final order as a ground for termination
provides a proper basis for the predicate act required under section 161.001(b)(1)
and even if the appellant does not challenge the trial court’s best-interest-of-the-
child finding. We have the power to grant an appropriate appellate remedy if we
sustain the appellant’s challenge to the trial court’s findings, and this appellate
remedy would preclude the Department of Family and Protective Services from
using the trial court’s termination order as a basis for a subsection (M) finding in a
future case seeking termination of the appellant’s parental rights as to another
child. Thus, contrary to the Department’s arguments, the issue of whether the
evidence suffices to support the trial court’s findings stands ripe for resolution.
This issue is not moot, and our opinion addressing the issue does not amount to an
advisory opinion.
We conclude that the record contains legally and factually sufficient
evidence to support the trial court’s finding under subsection (E), so we need not
address the sufficiency of the evidence to support the trial court’s finding under
subsection (D). We affirm the trial court’s final order terminating the parent-child
relationship between the appellant and the child (“Final Order”).
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant (“Mother”) gave birth to Philip1 in 2017, in Oregon. Mother listed
John (“Father”) as Philip’s father on the child’s birth certificate. When Father went
to jail for domestic abuse, Mother and Philip moved to Houston, Texas.
The Department became involved with the family when Mother and four-
month-old Philip were admitted to a hospital in Harris County because Mother was
1
We use pseudonyms to refer to the child and the father. See Tex. Fam. Code Ann. § 109.002(d);
Tex. R. App. P. 9.8.
2
having suicidal ideations and harming herself. Mother blamed these behaviors on
Father’s threat to leave her. Mother told hospital staff members that she did not
want to harm Philip. Mother said that she needed help and explained that she could
not take care of the child.
Mother told a Department investigator that before she met Father she was
“doing as many drugs as possible.” Mother confirmed that she had been diagnosed
with bipolar disorder and major depressive disorder. The domestic-abuse charges
for which Father had been incarcerated arose out of an incident in which Father
physically abused Mother when he was intoxicated. In commenting on the abuse,
Mother reported that Father was under great stress as a result of the couple being
homeless.
Before Mother’s release from the hospital, she agreed to let Casa de
Esperanza, a children and family services charity, care for Philip until she could
get her life more settled. Three months later, the Department initiated this suit
requesting termination of Mother’s parental rights under subsections (C), (D), (E),
(K), (N), and (O) of section 161.001(b)(1) of the Family Code and asking the trial
court to name the Department as Philip’s sole managing conservator. In the
meantime, the trial court named the Department as Philip’s temporary managing
conservator. At some point, presumably after Father’s release from jail, Mother
moved back to Oregon to be with Father, without ever having visited Philip.
Trial on the Department’s petition seeking termination of the parental rights
of Mother and Father began fifteen months after Mother left Philip in the care of
Casa de Esperanza. At trial, the Department’s caseworker, Mitchelle Joseph,
testified that the Department initiated its investigation when it received allegations
that Mother had attempted to stab herself in the stomach while she was home with
Philip. The caseworker testified that she believed it would be in the child’s best
3
interest to have Mother’s parental rights terminated because Mother had never
contacted Philip and Mother had failed to provide him with financial support,
failed to demonstrate the ability to provide him with a stable home, and had not
addressed Mother’s own mental health and substance-abuse issues.
The volunteer advocate (sometimes referred to as the “Texas Court
Appointed Special Advocate” or the “CASA volunteer”2), Samuel Todd,
recommended termination of Mother’s parental rights because Mother had shown
no interest in working on her family service plan. According to Todd, Philip was
thriving in a loving foster home. Todd recommended that Philip remain with his
foster parents.
In closing argument, the Department urged the trial court to terminate
Mother’s parental rights under subsections (N) (constructive abandonment) and
(O) (failure to complete the court-ordered family service plan) of Family Code
section 161.001(b)(1). The guardian ad litem agreed with the Department.
The trial court terminated Mother’s parental rights based on findings that
Mother had engaged in the conduct described in subsections (D), (E), (N), and (O)
of Family Code section 161.001(b)(1) and based on the court’s finding that
terminating Mother’s parental rights would be in Philip’s best interest. The trial
court terminated Father’s parental rights under Family Code section 161.002
providing for the termination of the rights of an alleged biological father.
II. ISSUES AND ANALYSIS
In her appellate brief, Mother concedes the sufficiency of the evidence to
support the trial court’s findings as to constructive abandonment under subsection
(N) and that termination of Mother’s parental rights is in Philip’s best interest, but
2
See Tex. Fam. Code Ann. § 107.031 (West, Westlaw through 2017 1st C.S.); In re K.M.L., 443
S.W.3d 101, 106 n.2 (Tex. 2014).
4
Mother nonetheless asks this court to review the sufficiency of the evidence to
support the trial court’s findings under subsections (D) and (E) because of the
collateral consequences of these findings. Mother relies on a line of cases in which
this court has concluded that when asked to address findings under subsections (D)
and (E), this court should do so even if a finding under another subsection supports
the final termination order because of potential collateral consequences that a
finding under subsection (D) or (E) might be used to support a finding under
subsection (M) in a future action to terminate the appellant’s parental rights as to
another child.3 See In re S.J.N., No. 14-18-00529-CV, 2018 WL 6494256, at *6
(Tex. App.—Houston [14th Dist.] Dec. 11, 2018, pet. denied) (mem. op.). The
parties have not cited, and research has not revealed, any case addressing whether
this review of a (D) or (E) finding is available if the appellant did not challenge
another finding under Family Code section 161.001(b)(1) and the trial court’s best-
interest-of-the-child finding. Thus, this case presents an issue of apparent first
impression.
Mother contends the evidence is insufficient to support the termination of
her parental rights under (D) and (E). In response, the Department argues that
because Mother has conceded the (N) ground and the trial court’s best-interest
determination, a review of the (D) or (E) ground would result in an advisory
3
The court may order termination of the parent-child relationship if the court finds by clear and
convincing evidence:
(1) that the parent has:
....
(M) 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) or substantially equivalent provisions of the law of another state[.]
Tex. Fam. Code Ann. § 161.001(b)(1) (West, Westlaw through 2017 1st C.S.).
5
opinion. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.
2000). Under the Supreme Court of Texas’s interpretation of the Texas
Constitution, Texas courts have no jurisdiction to issue advisory opinions. See,
e.g., Cadena Com. USA Corp. v. Texas Alco. Bev. Comm’n, 518 S.W.3d 318, 336
(Tex. 2017) (citing Tex. Const. art. IV, §§ 1, 22); Valley Baptist Med. Ctr. v.
Gonzalez, 33 S.W.3d at 822 (citing Tex. Const. art. II, § 1); Morrow v. Corbin, 62
S.W.2d 641, 645–46 (Tex. 1933) (Tex. Const. art. V, §§ 3, 6). Alternatively, the
Department argues that the record contains sufficient evidence to support the trial
court’s findings on the (D) and (E) grounds.
A. The Effect of the Supreme Court of Texas’s Opinion in In re N.G.
On the heels of oral argument in today’s case, the Supreme Court of Texas
issued its opinion in In re N.G. See No. 18-0508, —S.W.3d—,—, 2019 WL
2147263, at *4 (Tex. May 17, 2019) (per curiam). The N.G. court applied the
factors the Supreme Court of the United States used in Santosky v. Kramer and the
Supreme Court of Texas used in In re J.F.C. See Santosky v. Kramer, 455 U.S.
745, 759–68, 102 S. Ct. 1388, 1398–1402, 71 L. Ed. 2d 599 (1982); In re J.F.C.,
96 S.W.3d 256, 273–274 (Tex. 2002); In re N.G., 2019 WL 2147263, at *3–4.
Balancing these factors, and considering that the risk of error would mean
significant consequences for future parental rights, the N.G. court concluded that a
parent’s fundamental liberty interest in the right to parent outweighs the state’s
interest in deciding only what is necessary for final disposition of the appeal. In re
N.G., 2019 WL 2147263, at *4. Therefore, the N.G. court decided that allowing
(D) and (E) findings to go unreviewed on appeal when the parent has presented the
issue to the appellate court violates the parent’s due-process and due-course-of-law
rights. See id.
The N.G. court held that the court of appeals violated the mother’s due-
process and due-course-of-law rights by failing to review the trial court’s findings
6
under (D) and (E) when the appellant/mother had presented the issue. Id. The
N.G. court also concluded that due process and due course of law require an
appellate court to detail its analysis as to why a parent’s challenge to a finding
under (D) or (E) lacks merit. See id. at *3–4. In another case the high court
decided on the same day the court characterized the N.G. opinion as standing for
the proposition that “due process requires an appellate court to review and detail its
analysis as to termination of parental rights under [(D) or (E)] when challenged on
appeal.” In re Z.M.M., No. 18-0734, —S.W.3d—,—, 2019 WL 2147266, at *2
(Tex. May 17, 2019) (per curiam).
In In re N.G. the trial court terminated the mother’s rights based on its
findings under subsections (D), (E), and (O) and its best-interest finding. See In re
N.G., 2019 WL 2147263, at *1. The mother appealed and challenged each of these
findings, unlike Mother in today’s case, who does not challenge the (N) finding or
the best-interest finding. See id. The court of appeals in In re N.G. failed to
address the findings under (D) or (E) because the court of appeals rejected the
mother’s challenge to the (O) and best-interest findings. See id. The court of
appeals did not address the various court-of-appeals cases requiring review of
findings under (D) and (E) on nonconstitutional grounds, nor did the court of
appeals address whether constitutional due process or due course of law requires
this review. See In re N.G., No. 05-17-01255-CV, 2018 WL 1835697, at *4 (Tex.
App.—Dallas Apr. 18, 2018) (mem. op.), rev’d, 2019 WL 2147263, at *6 (Tex.
May 17, 2019). It appears that the appellant/mother did not raise either of these
points in the court of appeals. See In re N.G., 2019 WL 2147263, at *1; In re N.G.,
2018 WL 1835697, at *4. In In re N.G. the supreme court did not address whether
the court of appeals was required to review the sufficiency of the evidence to
support the trial court’s findings under (D) and (E) based on nonconstitutional
7
grounds. See In re N.G., 2019 WL 2147263, at *1–4. The mother in In re N.G.
argued in the supreme court that the Fourteenth Amendment’s Due Process Clause
and the Texas Constitution’s Due Course of Law provision required the court of
appeals to review the trial court’s findings under (D) and (E). See id. at *2. In
today’s case, Mother has not asserted these constitutional arguments.
Because of these differences between today’s case and In re N.G., today’s
case does not fall within the scope of the In re N.G. court’s holding. See id. at *1–
4. Nonetheless, the N.G. court made deliberate statements for future guidance in
the conduct of litigation. Without determining whether nonconstitutional law
required review of the trial court’s findings under (D) and (E), the N.G. court
concluded that (1) allowing (D) and (E) findings to go unreviewed on appeal when
the parent has presented the issue to the appellate court violates the parent’s due-
process and due-course-of-law rights and (2) due process and due course of law
require an appellate court to detail its analysis as to why a parent’s challenge to a
finding under (D) or (E) lacks merit. In re N.G., 2019 WL 2147263, at *3–4.
Although today’s case does not fall within the scope of the N.G. court’s holding,
consistency with the high court’s recent pronouncements demands that, without
first determining whether nonconstitutional law requires review of the trial court’s
(D) and (E) findings, we determine whether Mother’s challenge to the (D) and (E)
findings has merit and detail our analysis, even though another finding listed in the
Final Order as a ground for termination provides a proper basis for the predicate
act required under section 161.001(b)(1) and even though Mother does not
challenge the trial court’s best-interest-of-the-child finding. See In re N.G., 2019
WL 2147263, at *3–4.
B. The Advisory-Opinion Argument
The Department argues that because Mother has conceded one predicate
ground and the trial court’s best-interest determination, any review of the (D) or
8
(E) grounds would result in an advisory opinion. The parties’ arguments also raise
the issue as to whether an appellate remedy exists if the evidence is insufficient to
support the (D) and (E) findings, given that this court must affirm the termination
of Mother’s parental rights because she does not challenge the (N) or the best-
interest finding. Neither the N.G. court nor the Z.M.M. court addressed these
issues. See In re N.G., 2019 WL 2147263, at *1–4; In re Z.M.M., 2019 WL
2147266, at *1–2. We must do so to dispose of today’s appeal.
A trial court generally must file findings of fact separately rather than recite
them in the trial court’s judgment. See Tex. R. Civ. P. 299a; In re A.A.M., No. 14-
05-00740-CV, 2007 WL 1558701, at *3, n.3 (Tex. App.—Houston [14th Dist.]
May 31, 2007, no pet.) (mem. op.). But, Texas Rule of Civil Procedure 306,
entitled “Recitation of Judgment,” requires that the trial court state in its final
termination order the specific grounds for termination. See Tex. R. Civ. P. 306. In
today’s case, the trial court recited in its Final Order that the grounds for
termination were the trial court’s findings by clear and convincing evidence that
Mother engaged in the conduct described in subsections (D), (E), (N), and (O) of
section 161.001(b)(1) and that termination of Mother’s parental rights was in
Philip’s best interest. See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P. 306.
Because trial courts must recite the specific grounds for termination in their final
termination orders, parties properly may assert appellate complaints against these
grounds, and an appellate court has the power to grant appropriate appellate relief
if, for example, the appellate court concludes that the trial evidence is legally
insufficient to support a finding that was a ground for termination of the
appellant’s parental rights.4 See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P.
4
If the trial evidence is legally insufficient to support all of the findings under section
161.001(b)(1) or the best-interest finding, the appellate court could reverse the final termination
order and render judgment denying termination. Tex. R. App. P. 43.2(c). If the trial evidence is
9
306; In re A.A.M., 2007 WL 1558701, at *3, n.3; In re C.M.C., 554 S.W.3d 164,
173 (Tex. App.—Beaumont 2018, no pet.). Under this reasoning, in her second
issue, Mother challenges part of the Final Order — the findings under (D) and (E).
Because this court has the power to delete these grounds from the trial court’s
Final Order, the issue of whether the evidence suffices to support these findings is
not moot but ripe for resolution. Likewise, an opinion addressing this issue would
not be an advisory opinion.
C. The Effectiveness of the Available Appellate Remedies in a Future
Termination Case Based on Subsection (M)
In its opinion in In re N.G. the Supreme Court of Texas necessarily
concluded that courts of appeals have an appellate remedy if the trial court
reversibly erred in making findings under subsections (D) and (E) which became
specific grounds for termination and that this remedy would prevent these findings
from being used under subsection (M) in a future termination proceeding. See In
re N.G., 2019 WL 2147263, at *3–4. But, the high court did not explain why this
is so. One rationale finds roots in statutory construction.
The Department may prove a predicate act under subsection (M) by showing
that “the parent has . . . 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 subsection (D) or (E) or substantially equivalent provisions of the law
of another state.” Tex. Fam. Code § 161.001(b)(1)(M). One reasonable
factually insufficient to support all of the findings under section 161.001(b)(1) or the best-
interest finding, the court of appeals could reverse the final termination order and remand for a
new trial. Tex. R. App. P. 43.2(d). If the trial evidence is legally insufficient to support the
findings under (D) and (E) but is legally sufficient to support a finding under another subsection
of section 161.001(b)(1) and the best-interest finding, the appellate court could either (1) modify
the trial court’s final order to delete the (D) and (E) findings and affirm it as modified or (2)
reverse the trial court’s final order in part and render the judgment that the trial court should have
rendered. Tex. R. App. P. 43.2(b), (c).
10
interpretation of this provision is that the Department must prove that a trial court
signed a final order terminating the parent’s parent-child relationship as to another
child based on a finding that the parent’s conduct violated (1) subsection (D) or
subsection (E) or (2) substantially equivalent provisions of the law of another state,
without any requirement that the Department prove (1) the final termination order
is final by appeal and (2) no court has deleted the finding or reversed or set aside
the final order. See In re A.F.G., No. 14-17-00440-CV, 2017 WL 5506026, at *6
(Tex. App.—Houston [14th Dist.] Nov. 16, 2017, pet. denied) (mem. op.); In re
A.C., 394 S.W.3d 633, 640–41 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Another reasonable interpretation of subsection (M)’s text is that the Department
must prove that a trial court signed a final order terminating the parent’s parent-
child relationship as to another child based on a finding that the parent’s conduct
(1) violated subsection (D) or subsection (E) or (2) substantially equivalent
provisions of the law of another state, and also that (1) the final termination order
is final by appeal and (2) no court has deleted the finding or reversed or set aside
the final order.
In interpreting a statute, if one reasonable interpretation raises a serious
doubt as to the constitutionality of the statute and another reasonable interpretation
does not, we are to adopt the latter interpretation. See Whitman v. Am. Trucking
Assocs., 531 U.S. 457, 471, 121 S. Ct. 903, 911, 149 L. Ed. 2d 1 (2001); FSLIC v.
Glen Ridge I Condominiums, Ltd., 750 S.W.2d 757, 759 (Tex. 1988); Trustees of
Indep. Sch. Dist. of Cleburne v. Johnson, 52 S.W.2d 71, 72 (Tex. 1932).
Interpreting subsection (M) to allow the Department to prove a predicate act based
on a termination finding as to another child when a court has deleted the finding or
reversed the final order or when a court in a pending appeal might delete the
finding or reverse the final order would raise a serious doubt as to the
11
constitutionality of subsection (M). Therefore, we interpret subsection (M) to
require the Department to prove that a trial court had signed a final order
terminating the parent’s parent-child relationship as to another child based on a
finding that the parent’s conduct violated (1) subsection (D) or subsection (E) or
(2) a substantially equivalent provisions of another state’s law, and also that (1) the
final termination order is final by appeal and (2) no court has deleted the finding or
reversed or set aside the final order. See Whitman, 531 U.S. at 471, 121 S. Ct. at
911; Glen Ridge I Condominiums, Ltd., 750 S.W.2d at 759; Trustees of Indep. Sch.
Dist. of Cleburne, 52 S.W.2d at 72. This interpretation of subsection (M) differs
from that of courts that have concluded that a certified copy of a prior final
termination order as to another child based on (D) or (E) is sufficient evidence to
support an (M) finding. See In re A.F.G., 2017 WL 5506026, at *6; In re A.C., 394
S.W.3d at 640–41. Under today’s interpretation of subsection (M), if this court
were to find reversible error because the evidence is legally insufficient to support
the (D) and (E) findings in the Final Order and this court rendered judgment under
Texas Rule of Appellate Procedure 43.2(b) or (c), our decision would have an
impact on Mother’s rights because it would prevent the Department from using the
Final Order to prove a predicate act under subsection (M) in a future termination
case as to another child of Mother.
The Texas Legislature has mandated that “[a]n appeal in a suit in which
termination of the parent-child relationship is ordered shall be given precedence
over other civil cases by the appellate courts, shall be accelerated, and shall follow
the procedures for an accelerated appeal under the Texas Rules of Appellate
Procedure.” Tex. Fam. Code Ann. § 109.002(a–1) (West, Westlaw through 2017
1st C.S.). Appellate courts are to dispose of these appeals “with the least possible
delay.” Tex. Fam. Code Ann. § 263.405 (West, Westlaw through 2017 1st C.S.).
12
In most situations, remedies other than a direct appeal from the final termination
order will not be available for a party complaining that the trial evidence is
insufficient to support the trial court’s (D) or (E) findings. Notwithstanding Texas
Rule of Civil Procedure 329, the Texas Legislature requires that in most scenarios5
one whose parental rights have been terminated may not assert a direct or collateral
attack on the final termination order after the sixth month following the date the
trial court signed the order. Tex. Fam. Code Ann. § 161.211(a),(b) (West, Westlaw
through 2017 1st C.S.). A restricted appeal is available only if the one whose
parental rights were terminated (1) did not participate—either in person or through
counsel—in the hearing that resulted in the final order and (2) did not timely file a
postjudgment motion or request for findings of fact and conclusions of law, or a
notice of appeal within the time permitted by Texas Rule of Appellate Procedure
26.1(c). See Tex R. App. P. 30. Even if one seeks equitable-bill-of-review relief
within six months of the final termination order, that relief is available only in
limited circumstances. See Maree v. Zuniga, No. 14-17-00210-CV, —S.W.3d—,
—, 2019 WL 2000464, at *3–7 (Tex. App.—Houston [14th Dist.] May 7, 2019, no
pet. h.).
A direct appeal from the final termination order under Family Code section
109.002(a-1) likely presents the only opportunity for review of the trial court’s
findings under subsections (D) and (E). See In re N.G., 2019 WL 2147263, at *3.
In addition, if a party does not challenge these findings and waits to see if the
Department seeks to use these findings against the party in a future termination
5
This restriction applies to a person whose parental rights have been terminated if (1) the person
was personally served with citation, (2) the person was served by citation by publication, (3) the
person executed an affidavit of relinquishment of parental rights, (4) the person executed an
affidavit of waiver of interest in a child, or (5) the person’s rights have been terminated under
Family Code section 161.002(b). Tex. Fam. Code Ann. § 161.211(a),(b) (West, Westlaw
through 2017 1st C.S.).
13
case as to another child, no remedy likely will be available because, in most
scenarios, one whose parental rights have been terminated may not assert a direct
or collateral attack against the final termination order more than six months after
the date on which the trial court signed the order. Tex. Fam. Code Ann. §
161.211(a),(b). In those cases, once that period expires, Texas statutes do not
allow a party to challenge the (D) and (E) findings in the final order in the future if
the Department seeks to terminate parental rights as to another child under
subsection (M).
In this appeal, Mother asks this court to review the sufficiency of the
evidence to support the trial court’s findings under (D) and (E). If Mother were to
succeed in this challenge, this court could modify the trial court’s Final Order by
deleting the grounds for termination based on the (D) and (E) findings, and affirm
the Final Order as modified. See In re C.M.C., 554 S.W.3d at 173; Tex. R. App. P.
43.2(b). This appellate remedy would preclude the Department from proceeding
under subsection (M) in a future case seeking termination of Mother’s parental
rights as to another child.
D. Review of the Subsection (E) Finding
Standards of Review
Due to the severity and permanency of terminating the parental relationship,
clear and convincing evidence must support such an order. See Tex. Fam. Code
Ann. § 161.001; In re J.F.C., 96 S.W.3d at 265–66. “Clear and convincing
evidence” means “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.” Tex. Fam. Code Ann. § 101.007; In re J.F.C., 96 S.W.3d at 264.
This heightened burden of proof results in a “correspondingly searching standard
of appellate review.” In re A.C., 560 S.W.3d 624, 630 (Tex. 2018); see In re
14
C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental-termination
case, we must consider all evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009). The factfinder is the sole arbiter of the credibility and demeanor of each
witness. Id. at 346. We assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so, and we disregard all evidence
that a reasonable factfinder could have disbelieved. Id. at 344. Yet, this does not
mean that we must disregard all evidence that does not support the finding. Id.
Because of the heightened standard, we also must be mindful of any undisputed
evidence contrary to the finding and consider that evidence in our analysis. Id.
The evidence is legally insufficient to support the challenged finding if, after
conducting this review of the record evidence, we determine that no reasonable
factfinder could form a firm belief or conviction that the matter that must be
proven is true. Id. at 344–45.
In reviewing the factual sufficiency of the evidence under the clear-and-
convincing standard, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at
631; see In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor of
the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction, then the evidence is factually insufficient.” In re J.O.A.,
283 S.W.3d at 345. We give due deference to the factfinder’s findings and we
cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006). And, in making this determination, we must
15
undertake “an exacting review of the entire record with a healthy regard for the
constitutional interests at stake.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)
(quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (internal quotations omitted).
Nonetheless, our review must not be so rigorous that the only factfindings that
could withstand review are those established beyond a reasonable doubt. In re
H.R.M., 209 S.W.3d at 108.
Sufficiency of the Evidence Supporting the Subsection (E) Finding
In her second issue, Mother asserts that the evidence is legally and factually
insufficient to support termination under (D) and (E). We begin by addressing
Mother’s arguments as to the (E) finding, mindful of the requirement that Mother’s
appeal be meaningful and the N.G. court’s directive that we detail our analysis6 of
the sufficiency of the evidence supporting an (E) finding. See In re N.G., 2019 WL
2147263, at *3–4.
By making the (E) finding, the trial court found that Mother engaged in
conduct or knowingly placed Philip with persons who engaged in conduct which
endangered Philip’s physical or emotional well-being. Tex. Fam. Code Ann. §§
161.001(b)(1)(E). A finding of endangerment under (E) requires evidence that the
endangerment resulted from the parent’s conduct, including acts, omissions, or
failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.]
2014, pet. denied). Termination under (E) must be based on more than a single act
or omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. Id. A court properly may consider actions and inactions
6
The N.G. court did not abrogate or disapprove of the decision in In re A.B., 437 S.W.3d 498
(Tex. 2014), nor did the N.G. court conclude that due process and due course of law mandate that
an appellate court detail all of the relevant evidence as to why a parent’s challenge to a finding
under (D) or (E) lacks merit. See In re N.G., 2019 WL 2147263, at *3–4; In re A.B., 437 S.W.3d
at 502–06.
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occurring both before and after a child’s birth to establish a course of conduct. In
re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer
injury; rather, the specific danger to the child’s well-being may be inferred from
the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). A parent’s conduct that subjects a child to a life of
uncertainty and instability endangers the child’s physical and emotional well-
being. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018,
no pet.).
Mother was living with Father in Oregon when she gave birth to Philip.
Within four months, Father physically abused Mother while he was intoxicated.
Mother informed a Department investigator that Father had been “stressed out”
because the family was homeless and living in a facility for homeless families.
After Father’s domestic abuse, Mother fled to Texas with four-month old Philip.
Mother moved in with her grandparents. That meant Mother would be residing in
the same home as her older brother, who had sexually molested her as a child.
Mother told investigators that her brother completely ignored them while she and
Philip were living in the same home and that Philip was never left alone in the
brother’s company.
While Mother and Philip were living at Mother’s grandparents’ home,
Mother engaged in self-harm. Suicidal ideations plagued Mother, and she may
have attempted to stab herself. Mother had been prescribed medication to assuage
the symptoms of her mental-health diagnoses, but failed to take advantage of these
remedies. Mother admitted to a history of drug abuse. She told investigators that
she had used cocaine, methamphetamine, marijuana, and ecstasy. Mother said she
17
stopped using drugs after she met Father because he gave her a reason to live.
Mother indicated she was willing to take a drug test, but never followed up on her
scheduled appointment.
At all times during the investigation, Philip was in good health, and he was
current on his immunizations. Mother and Philip appeared to be well-bonded.
During the Department investigator’s conversation with Mother, Mother
denied attempting to stab herself in the stomach, because, she said, “that would be
stupid.” She did, however, admit that she had entertained thoughts of suicide
because she felt overwhelmed. Mother told the investigator that she had never had
thoughts of harming Philip, that she only wanted the best for him, and that she
loves him. Mother further stated that she needed help and could not care for Philip
at that time.
During the course of the investigation, Mother became emotional when
speaking to the Department over the telephone about Philip. Yet, Mother told the
Department’s caseworker that she would not be returning to Houston without
Father and that she was looking for a job in Oregon.
The trial court reasonably could have considered Mother’s mental state as
endangering Philip’s well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—
Houston [14th Dist.] 2003, no pet.) (considering mother’s schizophrenia and
resulting suicidal thoughts, hospitalizations, and violence). Mother allowed her
mental-health issues to go unaddressed, so much so that she admitted to no longer
being able to care for Philip. “When a parent’s mental state allows [the parent] to
engage in conduct that endangers the physical or emotional well-being of the child,
that conduct has bearing on the advisability of terminating the parent’s rights.” Id
(quoting In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ)).
18
Moreover, Mother continued to communicate with Father while he was
incarcerated in Oregon. During that time Father threatened to end his relationship
with Mother. Mother blames her self-destructive behavior on Father’s threats to
leave her. Despite the physical abuse and emotionally destabilizing
communications with Father, Mother insisted on continuing her relationship with
him and ultimately decided to leave Texas and move back to Oregon to be with
Father and to leave Philip in the care of Casa de Esperanza.
Evidence of domestic violence may be considered as evidence of
endangerment under subsection (E). In re K-A.B.M., 551 S.W.3d 275, 286 (Tex.
App.—El Paso 2018, no pet.). A parent’s abusive or violent conduct can produce a
home environment that endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d
841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Domestic violence,
want of self-control, and propensity for violence may be considered as evidence of
endangerment. Id.; see In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth
2007, no pet.) (considering the fact that mother “exposed her children to domestic
violence,” including incident where mother was “smacked” in front of child, as
evidence of endangerment under subsection (E)); see also Sylvia M. v. Dallas
County Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ)
(considering “volatile and chaotic” marriage altercation during pregnancy and
mother’s repeated reconciliation with abusive spouse). Violent conduct by a parent
toward the other parent may produce an environment that endangers the physical
or emotional well-being of a child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.).
Mother’s untreated mental-health issues gave way to behavior that presented
specific danger to Philip’s physical and emotional well-being. Mother’s choice to
continue her relationship with a man who had physically assaulted her and caused
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her extreme emotional disturbance subjects Philip to a life of uncertainty and
instability that further endangers his physical and emotional well-being.
Considering all the evidence in the light most favorable to the (E) finding,
assuming the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, disregarding all evidence that a reasonable
factfinder could have disbelieved, being mindful of any undisputed evidence
contrary to the finding, and considering that evidence in our analysis, we conclude
that a reasonable factfinder could form a firm belief or conviction that Mother
engaged in conduct or knowingly placed Philip with persons who engaged in
conduct that endangered Philip’s physical or emotional well-being. See Tex. Fam.
Code Ann. §§ 161.001(b)(1)(E); In re J.I.T.P. 99 S.W.3d at 845 (concluding that a
mother’s mental state in addition to domestic violence between the parents
supported a finding of endangerment).
As noted above, in reviewing the factual sufficiency of the evidence we
consider and weigh disputed evidence contrary to the finding against all the
evidence favoring the finding. In re A.C., 560 S.W.3d at 631. Evidence at trial
showed that Mother acted protectively towards Philip by admitting she needed help
and relinquishing his care to Casa de Esperanza. Mother also cried on the
telephone when asking about Philip and steadfastly maintained that she loves him
and wants the best for him. Additionally, Mother disputed the narrative that she
attempted to stab herself in the stomach in front of Philip. Philip was in good
health and current on his immunizations when he and Mother arrived at the
hospital before the Department became involved. While this evidence may weigh
against a finding under (E), substantial evidence weighs in favor of an (E) finding.
That evidence includes proof of Mother’s decision to move Philip into a home with
someone who molested her as a child, Mother’s failure to address her known
20
mental-health problems, Mother’s continued interactions with Father when she
knew encounters with him exacerbated her already precarious mental-health status,
Mother’s disputed self-harming behavior, and Mother’s decision to remain in a
relationship in which there was a history of domestic abuse.
Considering and weighing the disputed evidence contrary to the finding
against all the evidence favoring the finding, giving due deference to the trial
court’s findings, and after an exacting review of the entire record with a healthy
regard for the constitutional interests at stake, we conclude that in light of the
entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is not so significant that a factfinder could not
reasonably have formed a firm belief or conviction that Mother engaged in the
conduct described in subsection (E). See In re A.B., 437 S.W.3d at 503; In re
J.O.A., 283 S.W.3d at 345. Thus, the trial evidence stands factually sufficient to
support the trial court’s (E) finding.
Because we conclude the evidence is legally and factually sufficient to
support the trial court’s finding under section 161.001(b)(1)(E), we do not address
Mother’s arguments that the evidence is legally and factually insufficient to
support the trial court’s finding under subsection (D). See In re T.M.T., No. 14-18-
00442-CV, 2018 WL 6053667, at *11 (Tex. App.—Houston [14th Dist.] Nov. 20,
2018, no pet.) (mem. op.).
III. CONCLUSION
We overrule Mother’s second issue to the extent she asserts the evidence is
legally and factually insufficient to support the subsection (E) finding, and we need
not address the remainder of this issue in which she asserts the evidence is legally
21
and factually insufficient to support the subsection (D) finding.7
We affirm the trial court’s Final Order.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Spain and Poissant (Frost, C.J.,
concurring).
7
Mother has requested on appeal that we review her challenge to the (D) and (E) findings even
though Mother has not challenged the (N) and best-interest findings. Thus, in today’s case, we
do not address whether the In re N.G. opinion or the In re Z.M.M. opinion requires appellate
courts to review (D) and (E) findings when the appellant does not ask the court to review these
findings because of the collateral consequences and even if another finding provides a proper
basis for the predicate act required under section 161.001(b)(1). Nor do we address whether a
failure to challenge (D) and (E) findings on appeal results in a waiver of the review provided in
In re N.G. or whether this review only can be affirmatively waived.
22