IN THE INTEREST OF E.W., C.W., AND S.W., CHILDREN
the 87th District Court Freestone County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Scoggins
March 2015, the Department of Family and Protective Services
filed its original petition in this case for protection of a
child, for conservatorship, and for termination in suit
affecting the parent-child relationship. The petition
identified J.W., A.W., E.W., C.W., and S.W., who were then
fifteen, ten, seven, six, and four years old, respectively,
as the subject of the suit. J.W.'s and A.W.'s parents
are Appellant M.W. (alias Adam) and his former wife
E.W.'s, C.W.'s, and S.W.'s parents are Adam and
Appellant S.S. (alias Megan). In July 2015, the trial court
heard the case regarding J.W. and A.W. and ultimately
appointed A.H. as permanent managing conservator and Adam as
possessory conservator of the two children. In March 2016,
the trial court then terminated Adam's and Megan's
parental rights to E.W., C.W., and S.W. following a bench
trial. The trial court found that Adam and Megan had both
violated Family Code subsections 161.001(b)(1)(D) and (E) and
that termination was in the children's best interest.
and Megan's appellate counsel filed a notice of appeal.
Their counsel has now filed an Anders brief and a
motion to withdraw. Counsel asserts that he has diligently
reviewed the record and that, in his opinion, the appeal is
frivolous. See Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re
E.L.Y., 69 S.W.3d 838, 841 (Tex. App.-Waco 2002, order)
(applying Anders to termination appeal).
brief meets the requirements of Anders; it presents
a professional evaluation demonstrating why there are no
arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008)
("In Texas, an Anders brief need not
specifically advance 'arguable' points of error if
counsel finds none, but it must provide record references to
the facts and procedural history and set out pertinent legal
authorities."); Stafford v. State, 813 S.W.2d
503, 510 n.3 (Tex. Crim. App. 1991). Counsel has carefully
discussed why, under controlling authority, there is no
reversible error in the trial court's order of
termination. Counsel has informed us that he has: (1)
examined the record and found no arguable grounds to advance
on appeal; (2) served a copy of the brief and counsel's
motion to withdraw on Adam and Megan; and (3) informed Adam
and Megan of their right to obtain a copy of the record and
of their right to file a pro se response. See
Anders, 386 U.S. at 744, 87 S.Ct. at 1400;
Stafford, 813 S.W.2d at 510 n.3; High v.
State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978); see also Schulman, 252 S.W.3d at 409 n.23.
Adam and Megan have filed a pro se response, raising
several issues, but none are arguable grounds to advance in
Adam and Megan contend that the evidence is insufficient to
support the trial court's termination of their parental
rights to E.W., C.W., and S.W. In a proceeding to terminate
the parent-child relationship brought under section 161.001,
the Department must establish by clear and convincing
evidence two elements: (1) one or more acts or omissions
enumerated under subsection (b)(1) of section 161.001, termed
a predicate violation; and (2) that termination is
in the best interest of the child. Tex. Fam. Code Ann. §
161.001(b)(1), (2) (West Supp. 2016); Swate v.
Swate, 72 S.W.3d 763, 766 (Tex. App.- Waco 2002, pet.
denied). The factfinder must find that both elements are
established by clear and convincing evidence, and proof of
one element does not relieve the petitioner of the burden of
proving the other. Holley v. Adams, 544 S.W.2d 367,
370 (Tex. 1976); Swate, 72 S.W.3d at 766.
"Clear and convincing evidence" is defined as
"that measure or degree of proof which 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." In re G.M., 596 S.W.2d 846, 847
legal and factual sufficiency reviews in termination cases
must take into consideration whether the evidence is such
that a factfinder could reasonably form a firm belief or
conviction about the truth of the matter on which the
petitioner bears the burden of proof. In re J.F.C.,
96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal
sufficiency review); In re C.H., 89 S.W.3d 17, 25
(Tex. 2002) (discussing factual sufficiency review).
In a legal sufficiency review, 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
conclusions 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 have been incredible.
J.F.C., 96 S.W.3d at 266.
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.
Id. (footnotes and citations omitted); see
C.H., 89 S.W.2d at 25.
begin with the sufficiency of the evidence to establish that
Adam and Megan violated Family Code subsections
161.001(b)(1)(D) and (E). Termination under subsection
161.001(b)(1)(D) requires clear and convincing evidence that
the parent has "knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the
child." Tex. Fam. Code Ann. § 161.001(b)(1)(D).
Termination under subsection 161.001(b)(1)(E) requires clear
and convincing evidence that the parent has "engaged in
conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional
well-being of the child." Id. §
endanger means to expose to loss or injury, to jeopardize.
Tex. Dep't of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); see also In re M.C.,
917 S.W.2d 268, 269 (Tex. 1996). 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. See 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 whether the child's surroundings
threaten his well-being. In re S.M.L., 171 S.W.3d
472, 477 (Tex. App.- Houston [14th Dist.] 2005, no pet.).
Section D permits termination if the petitioner proves
parental conduct caused a child to be placed or remain in an
endangering environment. In re R.D., 955 S.W.2d 364,
367 (Tex. App.- San Antonio 1997, pet. denied).
It is not necessary that the parent's conduct be directed
towards 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. In re S.M.L., 171 S.W.3d at 477. Conduct
that demonstrates awareness of an endangering environment is
sufficient to show endangerment. Id. (citing In
re Tidwell, 35 S.W.3d 115, 119-20 (Tex. App.-Texarkana
2000, no pet.) ("[I]t is not necessary for [the mother]
to have had certain knowledge that one of the [sexual
molestation] offenses actually occurred; it is sufficient
that she was aware of the potential for danger to the
children and disregarded that risk by … leaving the
children in that environment.")). In considering whether
to terminate parental rights, the court may look at parental
conduct both before and after the birth of the child.
Avery v. State, 963 S.W.2d 550, 553 (Tex.
App.-Houston [1st Dist.] 1997, no pet.). Section D permits
termination based upon only a single act or omission. In
re R.D., 955 S.W.2d at 367.
Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex.
App.-Houston [1st Dist.] 2010, pet. denied).
subsection 161.001(b)(1)(E), the relevant inquiry is whether
evidence exists that the endangerment of the child's
well-being was the direct result of the parent's conduct,
including acts, omissions, or failures to act. In re
K.A.S., 131 S.W.3d 215, 222 (Tex. App.-Fort Worth 2004,
pet. denied); Dupree v. Tex. Dep't of Protective
& Regulatory Servs., 907 S.W.2d 81, 83-84
(Tex. App.-Dallas 1995, no writ).
Additionally, termination under subsection (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. [In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.-Fort Worth 2003, no pet.)]; see Tex. Fam. Code
Ann. § 161.001[(b)](1)(E). It is not necessary, however,
that the parent's conduct be directed at the child or
that the child actually suffer injury. Boyd, 727
S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The
specific danger to the child's well-being may be inferred