Appeal from the 315th District Court Harris County, Texas
Trial Court Case No. 2017-04601J
consists of Kelly, Hightower, and Countiss, Justices.
appeal, the mother of three minor children challenges the
trial court's final decree terminating her parental
rights based on findings that (a) she endangered the
children, (b) she failed to comply with a provision of a
court order specifying the actions necessary to obtain return
of her children, and (c) termination of her parental rights
was in the best interest of the children. Tex. Fam. Code
§ 161.001(b)(1)(E), (O); id. §
161.001(b)(2). She challenges the sufficiency of the evidence
to support the predicate act and best interest findings. She
also challenges the sufficiency of the evidence to support
the court's subsequent decision to appoint the Department
of Family & Protective Services ("Department")
as managing conservator of the children.
case concerns A.G. ("Mother") and her three
children: A.L.J. ("Alicia") and A.L.J.
("Amelia"), twin girls born June 28, 2012, and
G.A.G. ("George"), a boy born February 7,
2017. On September 25, 2017, when the twins were
almost five years old and George was eight months old, the
Department received a report alleging that Mother subjected
her children to neglectful supervision. According to the
report, George's father and Mother were found unconscious
in a car. George was in the back. The police responded and
were able to wake Mother, who said she was tired from arguing
with George's father. She stated that she had been
staying in a hotel for a few days, and she admitted using
synthetic marijuana. George was taken to the hospital as a
days later, the Department filed suit for protection of
Alicia, Amelia, and George, and the children were placed in
the Department's temporary managing conservatorship. In
November 2017, the trial court entered an order establishing
the actions necessary for Mother to obtain the return of her
children. The plan referenced an additional child protection
case involving Mother and the twins in which Mother had been
"under the influence" and the twins were placed
with their grandmother. The plan noted that Mother was on
probation for driving under the influence, posing a
significant risk to the family due to her continued substance
Department's plan listed as its goal that Mother
demonstrate the ability to maintain a safe, stable, and sober
lifestyle, and refrain from engaging in criminal activity.
The plan required her to complete the following tasks: (1)
maintain stable and safe housing for a minimum of six months;
(2) provide the Department's caseworker with verification
of any and all sources of income; (3) complete a parenting
education course; (4) participate in a drug/alcohol
assessment and follow all recommendations; (5) participate in
random drug testing; (6) participate in a psychosocial
assessment and follow recommendations; and (7) attempt to
complete some services while incarcerated.
began in February 2019. The Department called one witness,
caseworker Jasmin Green. In her testimony, Green described
the series of events giving rise to the Department's
case, Mother's involvement with the criminal justice
system, Mother's progress on the service plan, and why
termination was in the children's best interest.
testified that Mother had texted her at some point before
trial to say that she was not able to leave work to attend
the trial. Through her attorney, Mother did not call any
witnesses and did not object to the admission of any of the
Department's exhibits. After Green's testimony, the
Department asked the trial court to terminate Mother's
parental rights pursuant to sections 161.001(b)(1)(E) and (O)
of the Texas Family Code. The children's attorney ad
litem opined that the Department had met its burden to
terminate Mother's parental rights. Following argument,
the court terminated Mother's parental rights under
sections (E) and (O) and named the Department as the
children's sole managing conservator. On March 7, 2019,
the court signed a decree for termination reflecting those
findings and that termination was in the children's best
interests of parents in the care, custody, and control of
their children is a fundamental liberty interest protected by
the United States Constitution. See, e.g., Troxel v.
Granville, 530 U.S. 57, 65 (2000); Santosky v.
Kramer, 455 U.S. 745, 758–59 (1982). But the
rights of natural parents are not absolute. In re
A.V., 113 S.W.3d 355, 361 (Tex. 2003). Protection of the
child is paramount, and when the State institutes proceedings
to terminate parental rights, the courts focus on protecting
the best interests of the child. See id.
strictly scrutinize termination proceedings on appeal because
the "evidence in support of termination must be clear
and convincing before a court may involuntarily terminate a
parent's rights." Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985) (citing Santosky, 455 U.S.
at 747-48); see In re J.F.C., 96 S.W.3d 256, 263-64
(Tex. 2002). '"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 § 101.007.
conducting a legal sufficiency review, we view "the
evidence in the light most favorable to the judgment, "
which means that we "must assume that the factfinder
resolved disputed facts in favor of its finding if a
reasonable factfinder could do so." J.F.C., 96
S.W.3d at 266. A reviewing court may not disregard undisputed
facts that do not support the finding, but it "should
disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible."
Id. Evidence is legally sufficient when it enables a
factfinder to "reasonably form a firm belief or
conviction about the truth of the matter on which the State
bears the burden of proof." Id. at 265-66;
see Tex. Fam. Code § 101.007.
factual sufficiency review, the reviewing court again
determines "whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction
about the truth of the State's allegations."
J.F.C., 96 S.W.3d at 266 (quoting In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002)). But rather than
disregarding disputed evidence that the factfinder could have
disbelieved, we consider whether "a reasonable
factfinder could not have resolved that disputed evidence in
favor of its finding." Id. "If, in light
of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is
so significant that a factfinder could not reasonably have
formed a firm belief or conviction, then the evidence is
factually insufficient." Id.
one predicate finding under section 161.001(b)(1) is
necessary to support a judgment of termination when there
also is a finding that termination is in the children's
best interest. See In re A.V., 113 S.W.3d 355, 362
(Tex. 2003). Due process requires, however, that when a
parent has raised the issue of insufficiency of the evidence
to support the trial court's findings under section
161.001(b)(1)(D) or (E) of the Family Code, an appellate
court must address at those endangerment findings to ensure a
meaningful appeal. In re N.G., 577 S.W.3d 230, 235
(Tex. 2019) (per curiam). Due process and due course of law
requirements also mandate that an appellate court detail its
analysis when a parent appeals termination under section
161.001(b)(1)(D) or (E) of the Family Code. Id. at
appeal, Mother contends that the evidence was not legally or
factually sufficient to support a finding that she endangered
her children under section 161.001(b)(1)(E) or that she
failed to comply with a provision of a court order
establishing necessary actions to obtain the return of the
children under section 161.001(b)(1)(O).
The evidence was legally and factually sufficient to show
that Mother endangered the children under section
may order termination of the parent-child relationship if it
finds by clear and convincing evidence that a parent
"engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical
or emotional well-being of the child." Tex. Fam. Code
§ 161.001(b)(1)(E). The relevant inquiry is whether
evidence exists that the endangerment of the child's
physical and emotional well-being was the direct 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); see also In re
S.M.L., 171 S.W.3d 472, 477 (Tex.App.-Houston [14th
Dist] 2005, no pet.).
word "endanger" as used in section 161.001
"means 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). In this context,
endanger means to expose to loss or injury, or to jeopardize.
Id. (internal citations omitted); see Jordan v.
Dossey, 325 S.W.3d 700, 723 (Tex.App.-Houston [1st Dist]
2010, pet. denied) (endangerment includes jeopardizing a
child's emotional or physical health); accord In re
A.J.H., No. 01-18-00245-CV, 2019 WL 190050, at *7-8
(Tex.App.-Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem.
op.). Danger to the child's well-being can be inferred
from parental misconduct alone, and courts may consider
parental conduct both before and after the child's birth.
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)
("[T]he endangering conduct may include the parent's
actions before the child's birth, while the parent had
custody of older children, including evidence of drug
usage."). The conduct need not occur in the child's
presence, and it may occur "both before and after the
child has been removed by the Department." Walker v.
Tex. Dep't of Family & Protective Servs., 312
S.W.3d 608, 617 (Tex.App.- Houston [1st Dist.] 2009, pet.
denied); In re A.A.M., 464 S.W.3d 421, 426
(Tex.App.-Houston [1st Dist.] 2015, no pet.). Termination
under section (E) must be based on more than a single act or
omission-the evidence must demonstrate a voluntary,
deliberate, and conscious course of conduct by the parent.
In re C.A.B., 289 S.W.3d 874, 883 (Tex.App.-Houston
[14th Dist.] 2009, no pet.).
undisputed evidence supports the court's finding under
section (E). Mother's criminal history, including her
ten-month period of incarceration, her use of illegal drugs,
and her history of instability support a finding of
endangerment. "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."
N.A.B. v. Tex. Dep't of Family & Protective
Servs., No. 03-14-00377-CV, 2014 WL 6845179, at *2
(Tex.App.-Austin Nov. 26, 2014, no pet.) (mem. op.). Although
incarceration alone will not support termination, evidence of
criminal conduct, convictions, and imprisonment may support a
finding of endangerment under section (E). See
C.A.B., 289 S.W.3d at 886. Likewise, "a
parent's use of narcotics and its effect on his or her
ability to parent may qualify as an endangering course of
conduct." J.O.A., 283 S.W.3d at 345. Illegal
drug use may support termination under section (E) because
"it exposes the child to the possibility that the parent
may be impaired or imprisoned." Walker, 312
S.W.3d at 617. In addition, "a parent's decision to
engage in illegal drug use during the pendency of a
termination suit, when the parent is at risk of losing a
child, may support a finding that the parent ...