Court of Appeals of Texas, Twelfth District, Tyler
IN THE INTEREST OF B.S. AND M.R., CHILDREN
from the 392nd District Court of Henderson County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
appeals the termination of her parental rights. In one issue,
she challenges the legal and factual sufficiency to support
the termination order. We affirm.
the mother and C.C. is the father of B.S.1 and M.R. On July
31, 2017, the Department of Family and Protective Services
(the Department) filed an original petition for protection of
B.S.1 and M.R., for conservatorship, and for termination of
B.S.'s and C.C.'s parental rights. The Department was
appointed temporary managing conservator of the children, and
the parents of the children were appointed temporary
possessory conservators with limited rights, duties, access,
conclusion of the trial on the merits, the trial court found,
by clear and convincing evidence, that B.S. engaged in one or
more of the acts or omissions necessary to support
termination of her parental rights under subsections (D),
(E), and (O) of Texas Family Code Section 161.001(b)(1). The
trial court also found that termination of the parent-child
relationship between B.S., B.S.1, and M.R. is in the
children's best interest. Based on these findings, the
trial court ordered that the parent-child relationship
between B.S., B.S.1, and M.R. be terminated. This appeal
of Parental Rights
termination of parental rights embodies fundamental
constitutional rights. Vela v. Marywood, 17 S.W.3d
750, 759 (Tex. App.-Austin 2000), pet. denied per
curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J.,
911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied).
Because a termination action "permanently sunders"
the bonds between a parent and child, the proceedings must be
strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d
349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174,
179 (Tex. App.-El Paso 1998, no pet.).
161.001 of the family code permits a court to order
termination of parental rights if two elements are
established. Tex. Fam. Code Ann. § 161.001 (West Supp.
2018); In re J.M.T., 39 S.W.3d 234, 237 (Tex.
App.-Waco 1999, no pet.). First, the parent must have engaged
in any one of the acts or omissions itemized in the second
subsection of the statute. Tex. Fam. Code Ann. §
161.001(b)(1) (West Supp. 2018); Green v. Tex. Dep't
of Protective & Regulatory Servs., 25 S.W.3d 213,
219 (Tex. App.-El Paso 2000, no pet.); In re J.M.T.,
39 S.W.3d at 237. Second, termination must be in the best
interest of the child. Tex. Fam. Code Ann. §
161.001(b)(2) (West Supp. 2018); In re J.M.T., 39
S.W.3d at 237. Both elements must be established by clear and
convincing evidence, and proof of one element does not
alleviate the petitioner's burden of proving the other.
Tex. Fam. Code Ann. § 161.001; Wiley, 543
S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.
clear and convincing standard for termination of parental
rights is both constitutionally and statutorily mandated.
Tex. Fam. Code Ann. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means "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." Tex. Fam.
Code Ann. § 101.007 (West 2014). The burden of proof is
upon the party seeking the deprivation of parental rights.
In re J.M.T., 39 S.W.3d at 240.
confronted with both a legal and factual sufficiency
challenge, an appellate court must first review the legal
sufficiency of the evidence. Glover v. Tex. Gen. Indem.
Co., 619 S.W.2d 400, 401 (Tex. 1981); In re
M.D.S., 1 S.W.3d 190, 197 (Tex. App.-Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must 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 findings
were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). We must assume that the fact finder settled disputed
facts in favor of its finding if a reasonable fact finder
could do so and disregard all evidence that a reasonable fact
finder could have disbelieved or found incredible.
appropriate standard for reviewing a factual sufficiency
challenge to the termination findings is whether the evidence
is such that a fact finder could reasonably form a firm
belief or conviction about the truth of the petitioner's
allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder met this
standard, an appellate court considers all the evidence in
the record, both that in support of and contrary to the trial
court's findings. Id. at 27-29. Further, an
appellate court should consider whether disputed evidence is
such that a reasonable fact finder could not have reconciled
that disputed evidence in favor of its finding. In re
J.F.C., 96 S.W.3d at 266. The trier of fact is the
exclusive judge of the credibility of the witnesses and the
weight to be given their testimony. Nordstrom v.
Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st
Dist.] 1997, pet. denied).
under Section 16.001(b)(1)(E)
sole issue, B.S. argues the evidence is legally and factually
insufficient to terminate her parental rights pursuant to
subsection (E) of Texas Family Code Section 161.001(b)(1).
court may order termination of the parent-child relationship
if it finds by clear and convincing evidence that the parent
engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangers the physical
or emotional well being of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1)(E) (West Supp. 2018). Scienter is not
required for an appellant's own acts under Section
161.001(b)(1)(E), although it is required when a parent
places her child with others who engage in endangering acts.
In re U.P., 105 S.W.3d 222, 236 (Tex. App.-Houston
[14th Dist.] 2003, pet. denied). Finally, the need for
permanence is a paramount consideration for the child's
present and future physical and emotional needs. In re
N.K., 99 S.W.3d 295, 301 n.9 (Tex. App.-Texarkana 2003,
no pet.); In re M.D.S., 1 S.W.3d at 200.
means to expose to loss or injury or to jeopardize. Tex.
Dep't of Human Svcs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987); In re D.M., 58 S.W.3d 801, 811 (Tex.
App.-Fort Worth 2001, no pet.). It is not necessary that the
conduct be directed at the child or that the child actually
suffers injury. Boyd, 727 S.W.2d at 533; In re
J.J., 911 S.W.2d at 440. Subsection (E) requires us to
look at the parent's conduct alone, including actions,
omissions, or the parent's failure to act. In re
D.J., 100 S.W.3d 658, 662 (Tex. App.-Dallas 2003, pet.
denied); In re D.M., 58 S.W.3d at 811. Termination
under subsection (E) must be based on more than a single act
or omission. In re D.M., 58 S.W.3d at 812; In re
D.T., 34 S.W.3d 625, 634 (Tex. App.-Fort Worth 2000,
pet. denied). A voluntary, ...