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In re of M.A.N.Z.

Court of Appeals of Texas, Fourth District, San Antonio

December 6, 2017

IN THE INTEREST OF M.A.N.Z., a Child

         From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-00652 Honorable Richard Garcia, Judge Presiding

          Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          MARIALYN BARNARD, JUSTICE

         AFFIRMED

         This is an accelerated appeal from the trial court's order terminating appellant father's ("Father") parental rights to his child, M.A.N.Z. On appeal, Father contends the evidence was legally and factually insufficient to support the trial court's findings under section 161.001(D), (E), and (N), and its finding that termination was in M.A.N.Z.'s best interest. Father also contends he received ineffective assistance of counsel. We affirm the trial court's order terminating Father's parental rights to M.A.N.Z.

         Background

         After receiving reports that M.A.N.Z.'s mother was abusing illegal substances, the Texas Department of Family and Protective Services ("the Department") became involved with the family. The Department ultimately removed M.A.N.Z. and his two half-siblings, E.G. and J.G., from their mother's care after J.G. was born positive for illegal substances. At the time M.A.N.Z. was removed, M.A.N.Z.'s father - Father - was incarcerated. It is unclear from the record whether E.G.'s father was living with the children; however, the record reflects J.G.'s father was deceased. M.A.N.Z. and E.G. were placed with E.G.'s paternal grandparents. J.G. was placed in foster care. Thereafter, the Department filed a petition, seeking to terminate M.A.N.Z.'s mother's parental rights to all three of her children, including M.A.N.Z. In its petition, the Department also sought to terminate E.G.'s father's parental rights. However, M.A.N.Z.'s father - Father - was not named in the petition at that time. At the initial adversary hearing, the trial court rendered temporary orders, naming the Department temporary managing conservator of all three children.

         At the next status hearing, the trial court ordered genetic testing for M.A.N.Z. After receiving the genetic testing report establishing Father's paternity of M.A.N.Z., the Department amended its petition, naming Father as M.A.N.Z.'s father and seeking termination of Father's parental rights. During the case, the Department created a service plan for Father, which required, among other things, that he attend parenting classes, seek counseling and provide proof of employment and housing. The court held the statutorily required status and permanency hearings, and ultimately, the matter proceeded to a final hearing, during which the Department sought to terminate Father's parental rights.[1]

         The final hearing took place over the course of three days. At the hearing, the trial court heard testimony from Evelyn Palacios, the Department caseworker involved in the case, and Father, who participated telephonically. After hearing the testimony, the trial court ordered Father's parental rights terminated. The trial court found Father: (1) knowingly placed or allowed M.A.N.Z. to remain in conditions or surroundings that endangered M.A.N.Z.'s physical or emotional well-being; (2) engaged in conduct or knowingly placed M.A.N.Z. with someone who engaged in conduct that endangered M.A.N.Z.'s physical or emotional well-being; and (3) constructively abandoned M.A.N.Z. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (N) (West. Supp. 2016). The trial court further found termination of Father's parental rights would be in M.A.N.Z.'s best interest. See id. § 161.001(b)(2). Accordingly, the trial court rendered an order terminating Father's parental rights. Thereafter, Father perfected this appeal.

         Analysis

         On appeal, Father challenges the sufficiency of the evidence in support of the trial court's findings under section 161.001(b)(1)(D), (E), and (N) of the Texas Family Code ("the Code"). See id. § 161.001(b)(1)(D), (E), and (N). In addition to challenging each of the statutory grounds for termination, Father also challenges the sufficiency of the evidence in support of the trial court's finding that termination was in the best interest of his child. See id. § 161.001(b)(2). In his final issue on appeal, Father contends he received ineffective assistance of counsel.

         Standard of Review

         To terminate a parent's right to his or her child, a court must find by clear and convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of the Code and termination is in the best interest of the child. See id. § 161.001(b). "Clear and convincing evidence" refers to the measure or degree of proof that "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." Id. § 101.007. Courts require this heightened standard of review because termination of a parent's rights to his child results in permanent and severe changes for both the parent and child, thus, implicating due process concerns. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and factual sufficiency of the evidence, we apply the well-established standards of review. See Tex. Fam. Code Ann. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency).

         Statutory Termination Grounds

         As indicated above, Father challenges the sufficiency of the evidence in support of the trial court's findings with regard to each of the statutory grounds for termination. Specifically, Father argues the evidence is insufficient to support the trial court's findings that he: (1) knowingly placed or knowingly allowed M.A.N.Z. to remain in conditions or surroundings that endangered M.A.N.Z.'s physical or emotional well-being; (2) engaged in conduct or knowingly placed M.A.N.Z. with persons who engaged in conduct that endangered M.A.N.Z.'s physical or emotional well-being; and (3) constructively abandoned M.A.N.Z. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (N).

         We begin our analysis by first considering whether the evidence is sufficient to support the trial court's finding that Father engaged in conduct or knowingly placed M.A.N.Z. with persons who engaged in conduct that endangered M.A.N.Z.'s physical or emotional well-being. See id. § 161.001(b)(1)(E). According to Father, the Department failed to set forth more evidence than his mere imprisonment to establish his course of conduct endangered M.A.N.Z.'s well-being.

         Applicable Law

         Subsection 161.001(b)(1)(E) of the Code states that a court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with a person who has engaged in conduct which endangers the physical or emotional well-being of the child. Id.; In the Interest of R.S.-T., 522 S.W.3d 92, 109 (Tex. App.-San Antonio 2017, no pet.). Endangering a child means exposing a child to loss or injury or jeopardizing a child's emotional or physical well-being. R.S.-T., 522 S.W.3d at 109 (citing Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987)). To satisfy section 161.001(b)(1)(E), there must be evidence that the endangerment of the child's well-being was the direct result of the parent's conduct, including the parent's actions, omissions, or failure to act. Id.; In the Interest of M.C., 482 S.W.3d 675, 685 (Tex. App.-Texarkana 2016, pet. denied). The parent's conduct need not be directed at the child or have caused an actual injury or threat of injury to the child; rather, the evidence need only show that the parent in question engaged in a "course of conduct [that] creates a potential for danger which the parent is aware but disregards." R.S.-T., 522 S.W.3d at 109 (quoting In the Interest of S.M.L., 171 S.W.3d 472, 477 (Tex. App.-Houston [14th Dist.] 2005, no pet.)).

         Mere imprisonment, standing alone, does not constitute engaging in conduct that endangers the physical or emotional well-being of the child. M.C., 482 S.W.3d at 685; see In re D.J.H., 381 S.W.3d 606, 613 (Tex. App.-San Antonio 2012, no pet.) (citing S.M.L., 171 S.W.3d at 479). However, it is a factor that the fact finder may consider because when a parent is incarcerated, he or she is absent from the child's daily life and unable to provide support to the child, negatively impacting the child's living environment and emotional well-being. See S.M.L., 171 S.W.3d at 478-79. Moreover, this court has pointed out that "a parent's repeated criminal acts may constitute sufficient evidence of conduct that endangers the well-being of a ...


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