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In re C.W.

Court of Appeals of Texas, Second District, Fort Worth

May 25, 2017

IN THE INTEREST OF C.W., A CHILD

         FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY TRIAL COURT NO. CIV-16-0023

          PANEL PITTMAN, SUDDERTH, and KERR, JJ.

          MEMORANDUM OPINION [1]

          PER CURIAM

         After a bench trial, the trial court terminated the parent-child relationship between Appellant L.P. (Father) and his son C.W. In four issues, Father contends that the evidence is legally and factually insufficient to support the trial court's findings of endangerment, constructive abandonment, and noncompliance with the court-ordered reunification plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O) (West Supp. 2016). Father does not challenge the trial court's best interest finding. See id. § 161.001(b)(2). Because we hold that the evidence is legally and factually sufficient to support the trial court's finding that Father engaged in conduct which endangered C.W.'s physical or emotional well-being, see id. § 161.001(b)(1)(E), we affirm the trial court's judgment.

         I. Background Facts

         A. C.W. is the Product of a Brief Relationship Between Father and B.W. (Mother).

         Mother testified that

. She and Father dated three to four months;
. They saw each other two or three times a week and had sex "probably twice" a week;
. She found out she was pregnant with C.W. in March 2015, around the middle of the relationship;
. She told Father immediately;
. At that time, she was "[n]inety percent" sure that the unborn child was Father's and felt like Father knew the unborn child could be his; and
. Father did not deny being the father or ask her if someone else could be the father.

         Father went to jail in late June 2015 on charges that he had committed aggravated sexual assault of a child under six years old and indecency with a child by contact on or about May 23, 2015. Although Mother and Father spoke once on the telephone after he went to jail, she testified that his arrest ended their relationship.

         B. The State Intervened Because of Mother's Drug Use During and After the Pregnancy.

         On December 10, 2015, Mother tested positive for amphetamines during a prenatal doctor's visit. When C.W. was born the next week, he tested negative for drugs, but his meconium tested positive for methamphetamine. On December 23, 2015, Mother's hair strand tested positive for methamphetamine and marijuana. Additionally, Mother's daughter, C.N., who is not part of this appeal, told a Texas Department of Family and Protective Services (TDFPS) investigator that Mother and her new boyfriend smoked marijuana in the car in C.N.'s presence. With Mother's cooperation, TDFPS placed C.N. with her paternal grandparents and C.W. with maternal relatives.

         C. Mother Regained Sobriety, Completed Her Service Plan, and Regained Possession of C.W.; Father Remained in Jail.

         On January 13, 2016, TDFPS filed its petition for termination of the parent-child relationships between Mother and C.W. and between an unknown father and C.W. Mother told TDFPS that Father was C.W.'s probable father at the adversary hearing on January 28, 2016. On February 5, 2016, TDFPS filed an amended petition for termination naming Father as C.W.'s alleged father and requesting a paternity test. The paternity test results confirming Father's paternity of C.W. were filed on June 21, 2016. After receiving the paternity test results, the TDFPS conservatorship worker, Amanda Rodriguez, visited Father in jail and discussed the service plan with him. Father signed the service plan on June 30, 2016.

         While C.W. was living with Mother's relatives, she stayed sober and successfully completed her service plan. She regained temporary possession of C.W. on July 14, 2016.

         D. After a Bench Trial, Mother was Named C.W.'s Permanent Managing Conservator, but Father's Parental Rights Were Terminated.

         The first trial on Father's pending criminal charges ended in a mistrial. Father was still in jail awaiting retrial in his criminal case when the January 2017 termination trial occurred. While Father appeared at the termination trial, he invoked his right not to testify in response to each question asked of him.

         Mother and TDFPS conservatorship worker Rodriguez also testified, and the trial court admitted exhibits including the indictment pending against Father, the service plan signed by Father, and a permanency hearing order showing that his service plan was court-ordered. After hearing the evidence, the trial court named Mother as C.W.'s permanent managing conservator, removing all conservatorship rights, duties, and responsibilities from TDFPS, but terminated Father's parental rights, finding that termination was in C.W.'s best interest and that Father had

. knowingly placed or knowingly allowed C.W. to remain in conditions or surroundings which endangered his physical or emotional well-being;
. engaged in conduct or knowingly placed C.W. with persons who engaged in conduct which endangered his physical or emotional well-being;
. constructively abandoned C.W., who had been in the temporary managing conservatorship of TDFPS for not less than six months, and: (1) TDFPS had made reasonable efforts to return C.W. to Father; (2) Father had not regularly visited or maintained significant contact with C.W.; and (3) Father had demonstrated an inability to provide C.W. with a safe environment; and
. failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of C.W., who had been in the temporary managing conservatorship of TDFPS for not less than nine months as a result of his removal from the parent under Chapter 262 for abuse or neglect.

See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O).

         II. Legally and Factually Sufficient Evidence Supports the Trial Court's Endangering Conduct Finding.

         In his second issue, Father contends that the evidence is legally and factually insufficient to support the trial court's finding that he engaged in conduct or knowingly placed C.W. with persons who engaged in conduct which endangered his physical or emotional well-being. The parties dispute whether we can properly rely on the trial court's finding stating that Father knowingly placed C.W. with persons who engaged in conduct which endangered his physical or emotional well-being. Father contends that he did not know he was C.W.'s father until he received the paternity test results and therefore cannot be charged with knowledge that Mother was using methamphetamine during her pregnancy or thereafter. TDFPS contends that by not denying his paternity when Mother told him she was pregnant, Father held himself out as the parent, and thus his conduct regarding Mother's drug use during and after the pregnancy is relevant. We do not need to resolve this conflict because we hold that the evidence is legally and factually sufficient to support the trial court's finding that Father's own conduct endangered C.W.'s physical or emotional well-being. See id. § 161.001(b)(1)(E).

         A. We Determine Whether TDFPS Proved Endangering Conduct by ...


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