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In re A.E.T.

Court of Appeals of Texas, Tenth District

June 19, 2019

IN THE INTEREST OF A.E.T. AND A.D.T., CHILDREN

          From the County Court at Law Ellis County, Texas Trial Court No. 97412CCL

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          TOM GRAY Chief Justice

         Brian T. appeals from a judgment that terminated his parental rights to his children, A.E.T. and A.D.T.[1] See Tex. Fam. Code Ann. § 161.001. In six issues, Brian complains that the evidence was legally and factually insufficient for the trial court to have found the five predicate acts upon which the termination was based to be true (Issues One through Five) and that termination was in the best interest of the children (Issue Six). Because we find that the evidence was legally and factually sufficient as to Section 161.001(b)(1)(E) and the best interest finding, we affirm the judgment of the trial court.[2]

         Standard of Review

         The standards of review for legal and factual sufficiency in termination cases are well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the finding to determine whether a trier of fact could reasonably have formed a firm belief or conviction about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005); J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does not support the finding. J.F.C., 96 S.W.3d at 266.

         In reviewing the factual sufficiency of the evidence, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We must consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. Id.

         The factfinder is the sole arbiter when assessing the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We may not second-guess the factfinder's resolution of a factual dispute by relying on disputed evidence or evidence the factfinder "could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).

         Family Code Section 161.001(b)(1)(E)

         In his second issue, Brian challenges the legal and factual sufficiency of the evidence to support the trial court's findings regarding the predicate act listed in subsection 161.001(b)(1)(E) of the Texas Family Code. Tex. Fam. Code Ann. § 161.001(b)(1)(E) (West 2014). Subsection (E) permits termination when clear and convincing evidence shows 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) (West 2014). Within the context of subsection (E), endangerment encompasses "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Instead, "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. Id.; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).

         It is not necessary to establish that a parent intended to endanger a child in order to support termination of the parent-child relationship under subsection (E). See In re M.C., 917 S.W.2d at 270. The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533.

         Endangerment contemplates a voluntary, deliberate, and conscious course of conduct by the parent. In re S.R., 452 S.W.3d 351, 361 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). "Endangerment can occur through both acts and omissions." Phillips v. Texas Dep't of Protective & Regulatory Servs., 25 S.W.3d 348, 354 (Tex. App.-Austin 2000, no pet.). The statute does not require that conduct be directed at a child or cause actual harm; rather, it is sufficient if the parent's conduct endangers the well-being of the child. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.- Houston [1st Dist.] 2009, pet. denied). Actions and inactions occurring both before and after a child's birth can be considered to establish a "course of conduct." In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.-El Paso 2012, no pet.). A parent's past endangering conduct may create an inference that the parent's past conduct may recur and further jeopardize a child's present or future physical or emotional well-being. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.-Fort Worth 2001, no pet.).

         A parent's use of illegal drugs, and its effect on his or her ability to parent, may qualify as endangering conduct. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Illegal drug use may support termination under subsection (E) because it exposes the child to the possibility that the parent may be impaired or imprisoned. Walker, 312 S.W.3d at 617-18 (upholding termination of parental rights despite there being no direct evidence of parent's continued drug use actually injuring child).

         Additionally, a parent's criminal conduct and imprisonment are relevant to the question of whether the parent engaged in a course of conduct that endangered the well-being of the child. In re S.R., 452 S.W.3d at 360-61. Imprisonment alone is not an endangering course of conduct but is a fact properly considered on the endangerment issue. Boyd, 727 S.W.2d at 533-34. Routinely subjecting a child to the probability the child will be left ...


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