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

IN THE
TENTH COURT OF APPEALS
No. 10-22-00334-CV
IN THE INTEREST OF E.C. AND N.C., CHILDREN
From the 249th District Court
Johnson County, Texas
Trial Court No. DC-D202100362
MEMORANDUM OPINION
Father appeals from the trial court’s order terminating his parental rights to E.C.
and N.C. After hearing all the evidence, the trial court found by clear and convincing
evidence that Father (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, and (3) failed to comply with the provisions of a court order that specifically
established the actions necessary for Father to obtain the return of the children. TEX. FAM.
CODE ANN. § 161.001 (b) (1) (D) (E) (O) (West). 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). We affirm.
BACKGROUND
On April 20, 2021, the Texas Department of Family and Protective Services filed
its original petition seeking conservatorship of E.C. and N.C. and seeking termination of
Mother and Father’s parental rights. E.C. and N.C. were removed from Father and
Mother’s care at that time. Mother and Father filed separate answers to the original
petition. On April 18, 2022, the trial court signed an order for the monitored return to
Mother. The Department remained as temporary managing conservator of the children,
but they were returned to Mother’s home. On September 27, 2022, the trial court
terminated Father’s parental rights to E.C. and N.C. and named Mother as the sole
permanent managing conservator of E.C. and N.C.
SUFFICIENCY OF THE EVIDENCE
In issues one, two, and three Father argues that the evidence is insufficient to
support the trial court’s predicate parental termination findings under Section 161.001 (b)
(1) (D) (E) and (O) of the Texas Family Code. 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
In the Interest of E.C. and N.C. Page 2
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 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 CHILD
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.
In the Interest of E.C. and N.C. Page 3
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
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 a 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
In the Interest of E.C. and N.C. Page 4
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.
Father was arrested in June 2020 for domestic violence against Mother. The family
completed Family-Based Safety Services. Then in April 2021 Father was again arrested
for domestic violence when he strangled Mother. Father was convicted of felony assault
- family violence and was placed on community supervision for that offense. There were
allegations he assaulted another woman after his conviction for assaulting Mother.
Father did not comply with the terms of his community supervision and was incarcerated
at the time of trial.
Mother testified that there were multiple instances of family violence in the home
and that the children heard the violence in the home. Mother feared for her safety and
for the safety of her children. Mother further testified that Father abuses alcohol and
drugs.
Father was required to have two negative drug tests before he could visit with the
children. His first test was positive, and he never took any more tests.
Domestic violence may support a finding of endangerment under either Sections
161.001 (b) (1) (D) or Section 161.001 (E) depending on the given circumstances. See In the
Interest of A.L.H., 624 S.W.3d 47, 57 (Tex. App. —El Paso 2021, no pet.). There was
evidence of ongoing domestic violence by Father. Father was convicted of felony assault
In the Interest of E.C. and N.C. Page 5
- family violence for strangling Mother. The children were in the home during that
assault. Father himself testified that domestic violence endangers a child’s physical and
emotional well-being.
We find that the evidence is sufficient to support the trial court’s findings that
Father knowingly engaged in conduct or knowingly placed E.C. and N.C. with persons
who engaged in conduct that endangers the child. TEX. FAM. CODE ANN. § 161.001 (b) (1)
(E) (West). We overrule the second issue on appeal. Because we find that the evidence
is sufficient under Section 161.001 (b) (1) (E), we have addressed the concerns of
protecting Father’s due process and due course of law rights. See In the Interest of N.G.,
577 S.W.3d 230 (Tex. 2019).
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). Therefore, we need not
address the first and third issues. TEX. R. APP. P. 47.1.
BEST INTEREST
In the fifth issue, Father argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination is in the best interest of
the child. 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
In the Interest of E.C. and N.C. Page 6
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 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.
Both E.C. and N.C. were very young at the time of trial and unable to express their
desires. The children do not have any special medical needs. There was testimony that
E.C. is fearful of men and made statements that Father scared her. There was testimony
that Father was a danger to the children because of domestic violence.
Father did not complete any of his services. He was unsuccessfully discharged
from domestic violence class. He started but did not complete his parenting class. In
order to have visitation with the children, Father was required to have two negative drug
tests. He tested positive on the first test and never took a second test. He did not have
any visitation with the children after they were removed. He violated the terms of his
In the Interest of E.C. and N.C. Page 7
community supervision and was incarcerated during the trial. Father testified that he
had been incarcerated approximately fifty percent of the time since the case began.
Father was incarcerated at the time of trial. There was no testimony that he would
be able to provide for the children. He did not have a home, car, or job at the time of trial.
Mother testified that Father never provided any support for her or the children.
There was testimony that the children were doing very well in Mother’s care.
Mother completed her service plan. In her care, all of the children’s needs were being
met. There were no concerns for the children in Mother’s care.
We find that the evidence is legally and factually sufficient to support the trial
court’s finding that termination of Father’s parental rights is in the best interest of E.C.
and N.C. We overrule the fourth issue.
CONCLUSION
We affirm the trial court’s order terminating Father’s parental rights to E.C. and
N.C.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed December 28, 2022
[CV06]
In the Interest of E.C. and N.C. Page 8