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In re I.W.

Court of Appeals of Texas, Twelfth District, Tyler

June 28, 2019

IN THE INTEREST OF I.W., A CHILD

          Appeal from the 392nd District Court of Henderson County, Texas (Tr.Ct.No. FAM17-0650-392)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          GREG NEELEY JUSTICE

         This appeal is from a judgment terminating R.S.'s and D.W.'s parental rights to I.W. R.S., D.W., and the attorney/guardian ad litem for I.W. appealed. We affirm.

         Background

         R.S. is the mother of I.W. and D.W. is the father of I.W.[1] On August 24, 2017, the Texas Department of Family and Protective Services (the Department) filed an original petition for protection of a child, for conservatorship, and for termination of R.S.'s and D.W.'s parental rights. The Department was appointed temporary managing conservator of I.W.

         At the conclusion of a trial on the merits, the jury found, by clear and convincing evidence, that the parent-child relationship between I.W. and D.W. should be terminated and that the parent-child relationship between I.W. and R.S. should be terminated. Thus, the jury found, by clear and convincing evidence that D.W. engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D) and (E) of Texas Family Code Section 161.001(b)(1). The jury also found that termination of the parent-child relationship between D.W. and I.W. is in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between I.W. and D.W. be terminated.

         Further, the jury found, by clear and convincing evidence, that R.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 jury also found that termination of the parent-child relationship between R.S. and I.W. is in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between R.W. and I.W. be terminated. This appeal followed.

         Termination of Parental Rights

         Involuntary 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.).

         Section 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.

         The 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.

         Standard of Review

         When 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. Id.

         The 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).

         Termination Under Section 161.001(b)(1)

         In his first issue, D.W. challenges the legal and factual sufficiency of the evidence to terminate his parental rights under Texas Family Code Section 161.001(b)(1)(D) and (E). In her first issue, R.S. argues the evidence is legally and factually insufficient to terminate her parental rights pursuant to Texas Family Code Section 161.001(b)(1)(D) and (E).

         Applicable Law

         The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent 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) (West Supp. 2018). Subsection (D) addresses the child's surroundings and environment. In re N.R., 101 S.W.3d 771, 775-76 (Tex. App.- Texarkana 2003, no pet). The child's "environment" refers to the suitability of the child's living conditions as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine whether there is clear and convincing evidence of endangerment is before the child was removed. Ybarra v. Tex. Dep't of Human Servs., 869 S.W.2d 574, 577 (Tex. App.-Corpus Christi 1993, no pet.). Further, subsection (D) permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d 364, 367 (Tex. App.-San Antonio 1997, pet. denied).

         When seeking termination under subsection (D), the Department must show that the child's living conditions pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869 S.W.2d at 577. Further, there must be a connection between the conditions and the resulting danger to the child's emotional or physical well-being. Ybarra, 869 S.W.2d at 577-78. It is sufficient that the parent was aware of the potential for danger to the child in such environment and disregarded the risk. In re N.R., 101, S.W.3d at 776. In other words, conduct that demonstrates awareness of an endangering environment is sufficient to show endangerment. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.-Houston [14th Dist.] 2005, no pet.). We have previously concluded it is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons who live in the home of a child, or with whom a child is compelled to associate on a regular basis in his home, is not inherently part of the "conditions and surroundings" of that place or home. In re B.R., 822 S.W.2d 103, 106 (Tex. App.-Tyler 1991, writ denied). Subsection (D) is designed to protect a child from precisely such an environment. Id.

         The court may also 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.

         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 801, 811 (Tex. App.-Fort Worth 2001, no pet.). 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, deliberate, and conscious "course of conduct" by the parent that endangers the child's physical and emotional well-being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634.

         As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.-Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied). Endangering conduct is not limited to actions directed towards the child. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It necessarily follows that the endangering conduct may include the parent's actions before the child's birth and while the parent had custody of older children. See id. (stating that although "endanger" means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the parent's conduct be directed at the child or that the child actually suffers injury); see also In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.- Fort Worth 2004, pet. denied) (holding that courts may look to parental conduct both before and after child's birth to ...


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