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D. M. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

June 13, 2017

D. M., Appellant
v.
Texas Department of Family and Protective Services, Appellee

         FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 282, 662-B, HONORABLE CHARLES H. VAN ORDEN, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland.

          MEMORANDUM OPINION

          SCOTT K. FIELD, JUSTICE.

         D.M. appeals from the trial court's order terminating his parent-child relationship with his daughter, J.N.[1] In two issues, D.M. contends that the evidence is legally and factually insufficient to support the termination of his parental rights. We will affirm the trial court's order terminating D.M.'s parental rights.

         BACKGROUND[2]

         In January 2016, the Texas Department of Family and Protective Services (the Department) received a report that a drug screen of newborn J.N. was positive for marihuana, cocaine, and amphetamines. A few days later, the trial court appointed the Department as J.N.'s temporary managing conservator. In April 2016, the trial court found that D.M. was J.N.'s father based on the results of paternity testing.

         The Department sought termination of the parent-child relationship between J.N. and her parents, and the trial court held a final hearing in January 2017. At the hearing, the Department presented evidence of D.M.'s criminal history and also presented evidence that he was incarcerated at the time of the hearing. At the conclusion of the hearing, the trial court found by clear and convincing evidence that D.M. "engaged in conduct and knowingly placed the child with persons who engaged in conduct which endangers the physical and emotional well-being of the child." The court further found by clear and convincing evidence that termination of D.M.'s parental rights was in J.N.'s best interest. The trial court therefore terminated the parent-child relationship between D.M. and J.N.[3] This appeal followed.

         DISCUSSION

         To terminate the parent-child relationship, a court must find by clear and convincing evidence that: (1) the parent has committed one of the enumerated statutory grounds for termination and (2) it is in the child's best interest to terminate the parent's rights. Tex. Fam. Code § 161.001(b). D.M. contends that the evidence is legally and factually insufficient to support the termination of his parental rights. "The distinction between legal and factual sufficiency when the burden of proof is clear and convincing evidence may be a fine one in some cases, but there is a distinction in how the evidence is reviewed." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When reviewing the legal sufficiency of the evidence in a parental-rights-termination case, we consider all the evidence in the light most favorable to the trial court's finding and determine whether a reasonable fact-finder could have formed a firm belief or conviction that its finding was true. See id.; see also In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether a reasonable fact-finder could form a firm belief or conviction that a given finding was true. In re C.H., 89 S.W.3d 17, 18-19 (Tex. 2002). We assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable person could do so, and we disregard evidence that a reasonable fact-finder could have disbelieved or found incredible. In re J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient only if a reasonable fact-finder could not have resolved the disputed evidence in favor of its finding and if that disputed evidence is so significant that the fact-finder could not reasonably have formed a firm belief or conviction that its finding was true. Id.

         Statutory Ground for Termination

         The trial court found by clear and convincing evidence that D.M. "engaged in conduct and knowingly placed the child with persons who engaged in conduct which endangers the physical and emotional well-being of the child." See Tex. Fam. Code § 161.001(b)(1)(E). In his first issue, D.M. challenges the sufficiency of the evidence supporting the trial court's findings under subsection (E).

         Subsection (E) requires proof of child endangerment, i.e., exposing a child to loss or injury or jeopardizing a child's emotional or physical well-being. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment does not need to be established as an independent proposition but may be inferred from parental misconduct alone. Id. To constitute endangerment under subsection (E), the parent's conduct need not be directed at the child. In re E. N.C. , 384 S.W.3d 796, 803 (Tex. 2012). Conduct may endanger a child even if it does not cause the child to suffer actual injury. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (quoting Boyd, 727 S.W.2d at 533).

         A parent's illegal drug use may constitute endangerment under subsection (E). See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) ("[A] parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct."); In re M.C., 482 S.W.3d 675, 685 (Tex. App.-Texarkana 2016, pet. denied) ("Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under [subsection (E)].") (internal quotation marks omitted); T.M. v. Texas Dep't of Family & Protective Servs., No. 03-14-00784-CV, 2015 WL 3393943, at *2 (Tex. App.-Austin May 21, 2015, no pet.) (mem. op.) ("It is well-established that a parent's illegal drug use may constitute endangerment."); Walker v. Texas Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) ("Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under [subsection (E)].").

         Moreover, although a parent's incarceration, standing alone, will not support a finding of endangerment, the trial court may consider it as a factor in determining whether the parent has engaged in a course of conduct that endangers the child. See In re M.C., 482 S.W.3d at 685 ("[W]hile we recognize that imprisonment, standing alone, is not conduct which endangers the physical or emotional well-being of the child, intentional criminal activity which expose[s] the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child.") (internal quotation marks omitted); In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.-El Paso 2015, no pet.) ("Evidence of criminal conduct, convictions, and imprisonment and its effect on a parent's life and ability to parent may establish an endangering course of conduct."); In re M.D.S., 1 S.W.3d 190, 199 (Tex. App.-Amarillo ...


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