in the Interest of N.W.G. & L.S., Children

IN THE
TENTH COURT OF APPEALS
No. 10-20-00190-CV
IN THE INTEREST OF N.W.G. & L.S., CHILDREN
From the 413th District Court
Johnson County, Texas
Trial Court No. DC-D201900018
MEMORANDUM OPINION
Haley W. appeals from the trial court’s order terminating her parental rights to her
children, N.W.G. and L.S.1 After hearing all the evidence, the trial court found by clear
and convincing evidence that Haley (1) knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endanger the children, (2) engaged
in conduct or knowingly placed the children with persons who engaged in conduct that
endangers the children, (3) failed to comply with the provisions of a court order that
specifically established the actions necessary for her to obtain the return of the children,
1Cody is the father of N.W.G., and Zach is the father of L.S. Neither Cody nor Zach are a party to this
appeal.
and (4) had been the cause of L.S. being born addicted to alcohol or a controlled
substance. TEX. FAM. CODE ANN. § 161.001 (b) (1) (D) (E) (O) (R)(West Supp. 2019). The
trial court further found by clear and convincing evidence that termination was in the
best interest of the children. TEX. FAM. CODE ANN. § 161.001 (b) (2) (West Supp. 2019). We
affirm.
STANDARD OF REVIEW
In five issues, Haley argues that the evidence is legally and factually insufficient
to support the trial court’s findings on each of the grounds for termination and the finding
on best interest. Only one predicate act under section 161.001 (b) (1) is necessary to
support a judgment of termination in addition to the required finding that termination is
in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In conducting a
legal sufficiency review in a parental termination case:
[A] court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed
a firm belief or conviction that its finding was true. To give appropriate
deference to the factfinder's conclusion and the role of a court conducting a
legal sufficiency review, looking at the evidence in the light most favorable
to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved
or found to be incredible. This does not mean that a court must disregard
all evidence that does not support the finding. Disregarding undisputed
facts that do not support the finding could skew the analysis of whether
there is clear and convincing evidence.
In the Interest of N.W.G. & L.S. Page 2
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)) (emphasis in J.P.B.).
In a factual sufficiency review,
[A] court of appeals must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing.... [T]he
inquiry must be "whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State's
allegations." A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. 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.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (internal footnotes omitted) (alterations added).
ENDANGERING THE CHILDREN
Sections 161.001 (b) (1) (D) and (E) both require a finding of endangerment. To
endanger means to expose to loss or injury, to jeopardize. Texas Department of Human
Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The specific danger to a child's physical
or emotional well-being need not be established as an independent proposition, but it
may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533.
When termination of parental rights is based on section D, the endangerment
analysis focuses on the evidence of the child's physical environment, although the
environment produced by the conduct of the parents bears on the determination of
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whether the child's surroundings threaten his or her well-being. In the Interest of E.M.,
494 S.W.3d 209, 221 (Tex. App. —Waco 2015, pet. den’d). Section D permits termination
if the petitioner proves parental conduct caused a child to be placed or remain in an
endangering environment. Id. It is not necessary that the parent's conduct be directed
toward the child or that the child actually be injured; rather, a child is endangered when
the environment creates a potential for danger which the parent is aware of but
disregards. Id. Conduct that demonstrates awareness of an endangering environment is
sufficient to show endangerment. Id. In considering whether to terminate parental rights,
the court may look at parental conduct both before and after the birth of the child. Id.
Section D permits termination based upon only a single act or omission. In the Interest of
E.M., 494 S.W.3d at 222.
Under subsection 161.001 (b) (1) (E), the relevant inquiry is whether evidence exists
that the endangerment of the child's physical well-being was the direct result of the
parent's conduct, including acts, omissions, or failures to act. Id. Under subsection (E) it
can be either the parent’s conduct or the conduct of the person with whom the parent
knowingly leaves the child that endangers the physical or emotional well-being of the
child. In either instance it is thus the direct result of the parent’s conduct that results in
the termination of the parental rights. It is not necessary, however, that the conduct be
directed at the child or that the child actually suffer injury. In the Interest of E.M., 494
S.W.3d at 222.
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Because the evidence pertaining to subsections 161.001 (b) (1) (D) and (E) is
interrelated, we may conduct a consolidated review. In Interest of M.R.J.M., 280 S.W.3d
494, 503 (Tex. App. —Fort Worth 2009, no pet.).
The record shows that Haley used marijuana while pregnant with L.S., and that
L.S. tested positive at birth for marijuana. A mother's use of illegal drugs during
pregnancy may constitute conduct that endangers the physical and emotional well-being
of a child. In the Interest of K.A.C., 594 S.W.3d 364, 373 (Tex. App. — El Paso 2019, no pet.).
Haley allowed N.W.G. to go stay with her father, Cody, for an extended period of
time. While in Cody’s care, N.W.G. tested positive for methamphetamines. Haley knew
that there were people living in the home who had an extensive history of drug use.
Haley felt that the home was safe for N.W.G. to stay there. Evidence of a parent's drug
use, or evidence that another parent allowed a child to be around a parent or other
persons using drugs, can support the conclusion that the child's surroundings endanger
her physical or emotional well-being under subsection (D) and can qualify as a voluntary,
deliberate, and conscious course of conduct endangering the child's well-being under
subsection (E). In the Interest of C.V. L., 591 S.W.3d 734, 751 (Tex. App. —Dallas 2019, pet.
den’d).
Jenny Gilbreath, with the Texas Department of Family and Protective Services,
testified that she became involved with the family over concerns of Haley caring for the
children. Gilbreath testified that there were no safe sleeping arrangements for the
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children in the home and that the home was unsafe for the children. Gilbreath further
testified that there was domestic violence in the home and described an incident with a
loaded rifle. Haley and Zach’s mother fought over the loaded rifle, and the children were
in the middle of the altercation. Gilbreath felt that the children were in physical danger.
Chelsea Michael, with the Texas Department of Family and Protective Services,
also described domestic violence in the home. Michael said that Haley told her there had
been domestic violence in the home for several days before the incident with the loaded
rifle. Michael also testified that Haley has significant mental health issues. Haley has
suicidal ideations and has attempted suicide in the past. Michael stated that Haley is
prescribed medication for her mental illness, but she does not take the medications as
prescribed. Michael counted Haley’s pills less than a month before the final hearing and
testified that Haley is not taking the medication as prescribed. A history of
noncompliance with medication to treat mental illness can be considered as endangering
a child’s well-being. See In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App. —Houston [14th Dist.]
2003, no pet.).
We find that the evidence is legally and factually sufficient to support the trial
court’s findings that Haley knowingly placed or knowingly allowed the children to
remain in conditions or surroundings that endanger the children, and engaged in conduct
or knowingly placed the children with persons who engaged in conduct that endangers
the children. TEX. FAM. CODE ANN. § 161.001 (b) (1) (D) (E) (West Supp. 2019). We
In the Interest of N.W.G. & L.S. Page 6
overrule the first and second issues on appeal. Only one predicate act under section
161.001 (b) (1) is necessary to support a judgment of termination in addition to the
required finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355,
362 (Tex. 2003). Because we find that the evidence is sufficient under Section 161.001 (b)
(1) (D) & (E), we have addressed the concerns of protecting Haley’s due process and due
course of law rights. See In the Interest of N.G., 577 S.W.3d 230 (Tex. 2019). We need not
address the third and fourth issues on appeal.
BEST INTEREST
In the fifth issue, Haley argues that the evidence is legally and factually insufficient
to support the trial court’s finding that termination is in the children’s best interest. In
determining the best interest of a child, a number of factors have been considered,
including (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; (6) the plans for the child by these individuals; (7)
the stability of the home; (8) the acts or omissions of the parent that may indicate 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, 372 (Tex.1976); In re S.L., 421
S.W.3d 34, 38 (Tex. App. —Waco 2013, no pet.). The Holley factors focus on the best
interest of the child, not the best interest of the parent. In re S.L., 421 S.W.3d at 38. The
In the Interest of N.W.G. & L.S. Page 7
goal of establishing a stable permanent home for a child is a compelling state interest. Id.
The need for permanence is a paramount consideration for a child's present and future
physical and emotional needs. Id.
N.W.G was approximately four years-old at the final hearing, and L.S. was not yet
two years-old. Michael testified that N.W.G. indicated that she wants to remain in her
current foster placement as her “forever home.” N.W.G. told her counselor that the
previous homes where she lived were “dirty” and “scary.” The counselor testified that
the children need a stable home with parents who can give them the attention they need
and bond with them. There was testimony that Haley struggled to interact with the
children during visitations and that N.W.G. had to try to entertain Haley. Haley fell
asleep during one visitation.
Haley has mental health issues, and she does not take her prescribed medication
as directed. Haley used marijuana while pregnant with L.S., and L.S. tested positive for
marijuana at birth. Haley exposed the children to domestic violence and physical danger
while they were in her care.
Michael testified that Haley participated in parenting classes, but she was unable
to utilize those skills in parenting her children. Michael stated that Haley does not have
the skills to bond with the children and that Haley’s mental health is unstable.
Michael further testified that Haley is financially unstable and has not had
consistent stable housing. Haley has lived in five different residences since the case
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began. She has lived with various friends and her current boyfriend’s parents. Haley and
her boyfriend now have their own apartment where they have lived for three months.
Michael testified that the apartment did not have beds for the children, clothes for the
children, or toys for the children. Haley testified that she is employed, but she never
provided proof of employment to Michael.
Haley testified that she is employed and works nights. Her boyfriend also works
nights. They plan to alternate their work schedules so that one will be home with the
children. Haley said that her boyfriend will be the primary caretaker of the children
during the week. Haley testified that she is currently working with MHMR and that she
is able to apply the parenting skills she learned in her classes.
There was testimony that the children’s needs are met in their current placement.
N.W.G. receives counseling and is making progress in dealing with her anxiety. The
children’s educational needs are met, and they participate in appropriate activities. The
foster home is stable with no safety concerns.
We find that the evidence is legally and factually sufficient to support the trial
court’s finding that termination is in the best interest of the children. We overrule the
fifth issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
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JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed October 28, 2020
[CV06]
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