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In re B.W.

Court of Appeals of Texas, Second District, Fort Worth

June 6, 2019

In the Interest of B.W., A Child

          On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV15-00769

          Before Birdwell, Bassel, and Womack, JJ.

          SUPPLEMENTAL MEMORANDUM OPINION

          Dabney Bassel Justice

         On May 9, 2019, this court issued its opinion and rendered judgment in this cause affirming the termination of Appellant C.W.'s (Father's)[1] parental rights to Blake[2] after holding that the evidence was sufficient to support two unchallenged section 161.001(b)(1) grounds-(F) and (Q). In re B.W., No. 02-19-00009-CV, 2019 WL 2041808, at *8-9 (Tex. App.-Fort Worth May 9, 2019, no pet.) (mem. op.). The following week, the Texas Supreme Court issued its opinion in In re N.G., in which it held that due process and due course of law requirements mandate that an appellate court must address and detail its analysis for an appeal of termination of parental rights when a parent has presented an issue under family code section 161.001(b)(1)(D) or (E) even when there is sufficient evidence to support another enumerated ground for termination. See No. 18-0508, 2019 WL 2147263, at *4 (Tex. May 17, 2019). We therefore supplement our May 9, 2019 opinion with the following analysis of the portion of Father's second issue challenging the section 161.001(b)(1)(E) finding.

         Texas Family Code section 161.001(b)(1)(E) provides that the 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 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). To "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection (E), the evidence must show that the endangerment was the result of the parent's conduct, including acts, omissions, or failure to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). Termination must be based on more than a single act or omission, and there must be a voluntary, deliberate, and conscious course of conduct by the parent. Id. While endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffers injury; rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.-Fort Worth 2013) (en banc op. on reh'g), aff'd, 437 S.W.3d 498 (Tex. 2014). "Domestic violence, want of self[-]control, and propensity for violence may be considered as evidence of endangerment." In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Evidence of criminal conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged in a course of conduct that endangered the well-being of the child. A.S. v. Tex. Dep't of Family & Protective Servs., 394 S.W.3d 703, 712-13 (Tex. App.-El Paso 2012, no pet.). Finally, we may consider conduct that occurred outside the child's presence, including conduct before the child's birth. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.-Houston [1st Dist.] 2009, pet. denied).

         In our May 9, 2019 opinion, we set forth a detailed factual background. Here, we recap only the facts that are relevant to an analysis of the endangering-conduct finding:

• Mother testified that when she was pregnant with Blake, Father yelled at her, pushed her up against a wall, and then held her down in the front yard. B.W., 2019 WL 2041808, at *1.
• Mother said that Father had been violent towards her while Blake was present by verbally abusing her when Blake was only a few months old to a year old. Id.
• The record demonstrates that in 2015, Father was charged with aggravated assault with a deadly weapon and was placed on deferred-adjudication community supervision. Id. Mother testified that Father's criminal charge was a result of his assaulting his then-girlfriend. Id.
• Mother testified that Father's drug usage created a situation that had endangered Blake's physical and emotional well-being. Id. Mother explained that Father had anger issues and was very violent when he was on drugs. Id. Mother testified that she had seen Father hit Paternal Grandmother on the back with a broomstick and that he had been verbally abusive to Paternal Grandmother and Paternal Grandfather. Id. at *1 n.5.
• Mother testified that her concerns about Father's drug use were confirmed when his community supervision was revoked due to failed drug tests and he was adjudicated guilty of aggravated assault with a deadly weapon. Id. at *2. The judgment reflects that Father was placed on deferred-adjudication community supervision in 2015; that the State filed a motion to adjudicate, alleging that Father had violated multiple conditions of his community supervision; that he pleaded true to the alleged violations; and that the trial court found the allegations to be true, adjudicated Father guilty of aggravated assault, and sentenced him to ten years' confinement. Id. The record reflects that Father's parole eligibility date is January 13, 2023. Id.
• Paternal Grandmother said that Father began using drugs at the end of high school and had used drugs off and on for eight years. Id. at *3. Paternal Grandmother admitted that when Father was doing drugs, he would push her, yell at her, and scream at her and Paternal Grandfather. Id.
• Paternal Grandmother admitted that someone who had abused drugs and had committed aggravated assault with a deadly weapon was not a good, stable parent. Id. at *4. Paternal Grandmother could not guarantee that Father ...

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